Exhibit 10.27
PUT OPTION AGREEMENT
between
AMBAC ASSURANCE CORPORATION
and
DUTCH HARBOR FINANCE MASTER TRUST,
ON BEHALF OF ITS SERIES
DUTCH HARBOR FINANCE SUB-TRUST I
Dated as of December 3, 2001
Preamble
This Put Option Agreement, dated as of December 3, 2001 (the
"Agreement"), is by and between Ambac Assurance Corporation, a Wisconsin
corporation ("Ambac Assurance") and Dutch Harbor Finance Master Trust (the
"Master Trust"), a Delaware business trust, on behalf of its series, Dutch
Harbor Finance Sub-Trust I (the "Sub-Trust").
Recitals
WHEREAS, Ambac Assurance is authorized to issue 4,000 shares of
non-cumulative, perpetual preferred stock designated "Auction Market Preferred
Shares," which shares shall not be registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, on or before the Put
Option Payment Date (defined below) (the "Preferred Stock"); and
WHEREAS, Ambac Assurance and the Master Trust, on behalf of the
Sub-Trust, desire to enter into a binding agreement pursuant to which Ambac
Assurance will have the right to sell, at its option, the Preferred Stock to the
Master Trust, on behalf of the Sub-Trust, and the Master Trust, on behalf of the
Sub-Trust, will have an obligation to purchase the Preferred Stock upon Ambac
Assurance's exercise of its option and upon the other terms and conditions
agreed upon by the parties.
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions; Interpretation
1.1 The words "herein," "hereof" and "hereunder" and other words o(pound)
similar import refer to this Agreement as a whole and not to any
particular section, clause or other subdivision, and references to
"Sections" refer to Sections of this Agreement except as otherwise
expressly provided.
1.2 In this Agreement:
"ABC Securities" has the meaning set forth in the Declaration.
"Agreement" has the meaning set forth above in the Preamble.
"Ambac Assurance" has the meaning set forth above in the Preamble.
"Auction Date" has the meaning set forth in the General Terms of the
ABC Securities attached to the Declaration as Appendix A.
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"Auction Rate" has the meaning set forth in the General Terms of the
ABC Securities attached to the Declaration as Appendix A.
"Business Day" has the meaning set forth in the Declaration.
"Closing Date" means the date of this Agreement.
"Declaration" means the Declaration of Trust governing the Master
Trust, as the same may be amended or restated from time to time.
"Default" has the meaning set forth in the Declaration.
"Delayed Auction" has the meaning set forth in the General Terms of the
ABC Securities attached to the Declaration as Appendix A.
"Delayed Auction Date" has the meaning set forth in the General Terms
of the ABC Securities attached to the Declaration as Appendix A.
"Delayed Auction Period" has the meaning set forth in the General Terms
of the ABC Securities attached to the Declaration as Appendix A.
"Delayed Auction Rate" has the meaning set forth in the General Terms
of the ABC Securities attached to the Declaration as Appendix A.
"Delayed Distribution Rate" means, for each Delayed Auction Period, an
amount equal to (a) the yield anticipated to be earned during such
period on the Trust Property, minus (b) the anticipated expenses of the
Sub-Trust for such Delayed Auction Period, provided that such amount
shall be annualized and expressed as an annual rate with respect to the
aggregate face amount of the ABC Securities outstanding on the date the
Delayed Put Option Premium is determined.
"Delayed Put Option Premium" has the meaning set forth in Section 5.1.
"Delayed Put Option Premium Certificate" has the meaning set forth in
Section 5.2.
"Distribution Rate" means, for each Distribution Period, an amount
equal to (a) the Projected Yield for such period, minus (b) the
anticipated expenses of the Sub-Trust for such Distribution Period,
provided that such amount shall be annualized and expressed as an
annual rate with respect to the aggregate face amount of the ABC
Securities outstanding on the date the Put Option Premium is
determined. The Distribution Rate for each Distribution Period will be
calculated on the Auction Date occurring on the last Business Day prior
to such Distribution Period.
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"Distribution Payment Date" has the meaning set forth in the General
Terms of the ABC Securities attached to the Declaration as Appendix A.
"Distribution Period" has the meaning set forth in the General Terms of
the ABC Securities attached to the Declaration as Appendix A.
"Federal Funds Effective Rate" has the meaning set forth in the
Declaration.
"Holder" has the meaning set forth in the Declaration.
"Overnight Rate of Return" means the rate earned on the earnings on the
principal of the Trust Property from each Auction Date to the
Distribution Payment Date occurring on the next Business Day, which
shall be equal to the Federal Funds Effective Rate in effect as of the
Business Day prior to the date of the determination of the Put Option
Premium with respect to the Distribution Period for which such Put
Option Premium is calculated.
"Preferred Stock" has the meaning set forth above in the Recitals.
"Projected Yield" means all amounts of interest (including accreted
interest) and other payments due and payable (upon maturity or
otherwise) on the principal amount of the Trust Property (excluding any
repayment of principal) held by the Sub-Trust during the respective
Distribution Period, plus the amount of interest anticipated to be
earned based on the Overnight Rate of Return, as calculated on or prior
to 11:00 a.m. on the Auction Date for each respective Distribution
Period.
"Put Notice" means a written notice substantially in the form attached
hereto as Annex A.
"Put Option Premium" has the meaning set forth in Section 5.
"Put Option Premium Certificate" has the meaning set forth in Section
5.2.
"Put Option Payment Date" has the meaning set forth in Section 3.2(a).
"Put Option Price" has the meaning set forth in Section 4.1.
"Sub-Trust" has the meaning set forth above in the Preamble.
"Tax Matters Partner" has the meaning set forth in the Declaration.
"Trust Property" has the meaning set forth in the Declaration.
"Trustee" has the meaning set forth in the Declaration.
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In this Agreement, any reference to a "company" shall be construed so
as to include any corporation, trust, partnership, limited liability
company or other legal entity, wheresoever incorporated or established.
1.3 In this Agreement, save where the contrary is indicated, any reference
to:
(a) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case maybe,
such other agreement or document as the same may have been, or
may from time to time be, amended, varied, novated or
supplemented in accordance with its terms; and
(b) a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended or
re-enacted.
1.4 In this Agreement, any definition shall be equally applicable to both
the singular and plural forms of the defined terms.
2. Put Option; Term
2.1 In consideration of the payment of the Put Option Premium and the
Delayed Put Option Premium, if any, the Master Trust, on behalf of the
Sub-Trust, hereby grants to Ambac Assurance the right to require the
Master Trust, on behalf of the Sub-Trust, to purchase the Preferred
Stock on the terms set forth in this Agreement.
2.2 This Agreement and the put option created hereby shall remain in effect
until the earlier to occur of the following:
(a) Ambac Assurance terminates this agreement by delivering a written
notice to the Master Trust, on behalf of the Sub-Trust, stating
that Ambac Assurance is terminating the Agreement on the next
succeeding Auction Date that follows the notice by at least three
(3) Business Days and indicating the Auction Date on which the
termination shall become effective. Delivery of a termination
notice by Ambac Assurance shall be irrevocable; and
(b) Ambac Assurance fails to make payment of the Put Option Premium
or the Delayed Put Option Premium, if any, and such failure has
not been cured within five (5) Business Days.
2.3 This Agreement shall terminate upon Ambac Assurance's exercise of its
rights under Section 3 and the payment of the Put Option Price under
Section 4, provided, however, that Section 7.5 shall survive such
termination.
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3. Exercise of Put Option
3.1 The Master Trust, on behalf of the Sub-Trust, agrees that it shall,
upon exercise of the option as provided in Section 3.2, purchase the
Preferred Stock from Ambac Assurance for a purchase price equal to the
Put Option Price, which Put Option Price shall be payable on the Put
Option Payment Date in accozdance with Section 4.
3.2 (a) Ambac Assurance may exercise the option at any time upon three
(3) Business Days' notice after the date hereof and prior to the
termination of this Agreement by serving a Put Notice on the
Master Trust, on behalf of the Sub-Trust, specifying a payment
date (the "Put Option Payment Date"), which shall be the next
Distribution Payment Date on or after the third Business Day
after service of the Put Notice on the Master Trust, on behalf of
the Sub-Trust. Any notice of exercise provided pursuant to this
Section 3.2(a) shall be irrevocable.
(b) On the Put Option Payment Date, Ambac Assurance shall convey to
the Master Trust, on behalf of the Sub-Trust, or its designee
Preferred Stock with an aggregate liquidation preference equal to
the aggregate face amount of the ABC Securities outstanding on
the Put Option Payment Date. In addition, the number of shares of
Preferred Stock delivered shall equal the number of ABC
Securities outstanding on the Put Option Payment Date. The
Preferred Stock shall be delivered free and clear of any defect
in title, together with all transfer and registration documents
(or all notices, instructions or other communications) as are
necessary to convey title to the Preferred Stock to the Master
Trust, on behalf of the Sub-Trust (or its nominee).
(c) For avoidance of doubt, (1) any cash received by the Master
Trust, on behalf of the Sub-Trust, as interest or other payments
earned on the principal amount of the Trust Property (net of fees
and expenses and excluding any repayment of principal) and not
distributed to Holders as of the Put Option Payment Date shall be
distributed to Holders and shall not be used to purchase shares
of Preferred Stock; and (2) the amount of Preferred Stock
purchased from Ambac Assurance shall be reduced by the amount, if
any, by which the aggregate face amount of ABC Securities is
reduced pursuant to principal or interest losses on Trust
Property as a result of Defaults as required by the operation of
Section 6.10) of the Declaration and Section 6(b) of the General
Terms of the ABC Securities attached to the Declaration as
Appendix A on or before the Put Option Payment Date.
4. Payments
4.1 Upon receipt of a Put Notice, the Master Trust will allow the then
current assets of the Sub-Trust to mature, and will deliver the
proceeds attributable to principal received upon
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maturity of the assets (after satisfying the Sub-Trust's creditors, if
any, and after any principal returned to holders of the ABC Securities
pursuant to Section 6.10j) of the Declaration and Section 6(b) of the
General Terms of the ABC Securities attached to the Declaration as
Appendix A) to Ambac Assurance on the Put Option Payment Date. The
amount of such payment shall be referred to herein as the "Put Option
Price."
4.2 Payment by the Master Trust, on behalf of the Sub-Trust, of the Put
Option Price shall be made on or prior to 3:00 p.m. on the Put Option
Payment Date and to the account of Ambac Assurance specified in the Put
Notice.
4.3 Payment of the Put Option Price by the Master Trust, on behalf of the
Sub-Trust, shall be made as provided in Section 4.1 and Section 4.2
without setoff, claim, recoupment, deduction or counterclaim; provided,
however, that if Ambac Assurance exercises its option under Section 3
hereof at any time that it has failed to pay all or a portion of the
Put Option Premium or the Delayed Put Option Premium, if any, and such
failure has not been cured on or before the Put Option Payment Date,
the Master Trust, on behalf of the Sub-Trust, shall be entitled to set
off against the Put Option Price such unpaid portion of the Put Option
Premium or the Delayed Put Option Premium, as the case may be.
5. Put Option Premium
5.1 In consideration for the Master Trust's agreement to purchase the
Preferred Stock on behalf of the Sub-Trust in accordance with the terms
of this Agreement, Ambac Assurance agrees to pay to the Master Trust,
on behalf of the Sub-Trust, in US dollars, on each Distribution Payment
Date, an amount equal to the product of (A) the Auction Rate on the ABC
Securities for the respective Distribution Period less the Distribution
Rate for such Distribution Period, (B) the aggregate face amount of the
ABC Securities of the Sub-Trust outstanding at the time the Put Option
Premium is calculated and (C) a fraction, the numerator of which will
be the number of calendar days in the respective Distribution Period,
and the denominator of which will be 360 days.
The amount derived in accordance with such formula shall be known
herein as the "Put Option Premium."
If there is a Default during any Distribution Period, then Ambac
Assurance agrees to pay to the Master Trust, on behalf of the
Sub-Trust, in US dollars on each Distribution Payment Date following
receipt of the Delayed Put Option Premium Certificate an amount, as
determined by the Trustee, equal to the product of (A) the Delayed
Auction Rate on the ABC Securities for the Delayed Auction Period less
the Delayed Distribution Rate for such Distribution Period, (B) the
aggregate face amount of the ABC Securities of the respective Sub-Trust
outstanding at the time the Delayed Put Option Premium is calculated
and (C) a fraction, the numerator of which will be the number of
calendar days in the respective Delayed Auction Period, and the
denominator of which will be 360 days.
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The amount derived in accordance with such formula shall be known
herein as the "Delayed Put Option Premium"
5.2 The amount of the Put Option Premium shall be calculated by the Trustee
and delivered in writing (the "Put Option Premium Certificate"),
substantially in the form attached hereto as Annex B, to Ambac
Assurance prior to 5:00 p.m. on each Auction Date. The amount of the
Delayed Put Option Premium shall be calculated by the Trustee and
delivered in writing (the "Delayed Put Option Premium Certificate") to
Arnbac Assurance prior to 5:00 p.m. on the Delayed Auction Date. The
Put Option Premium Certificate, and any Delayed Put Option Premium
Certificate, also shall set forth the eligible assets held by the
Sub-Trust, the anticipated yield earned on each such asset, any
anticipated fees to be paid or incurred by the Trustee on behalf of the
Trust and the computation of the Put Option Premium, or the Delayed Put
Option Premium, as the case may be, in each case for the respective
Distribution Period and the Delayed Auction Period, respectively, and
shall be in the form attached hereto as Annex B.
5.3 If the Put Option Premium, or the Delayed Put Option Premium, if any,
is not paid on the date on which it is due, interest shall accrue
thereon at a rate equal to the maximum rate then in effect, during the
five (5) day cure period set forth in Section 2.2(b) hereof until such
Put Option Premium, or Delayed Put Option Premium, is paid.
6. Obligations Absolute
6.1 The Master Trust, on behalf of the Sub-Trust, acknowledges that,
provided Ambac Assurance has complied with the terms of this Agreement,
the obligations of the Master Trust, on behalf of the Sub-Trust,
undertaken under this Agreement are absolute, irrevocable and
unconditional irrespective of any circumstances whatsoever, including
any defense otherwise available to the Master Trust, on behalf of the
Sub-Trust, in equity or at law, including, without limitation, the
defense of fraud, any defense based on the failure of Ambac Assurance
to disclose any matter, whether or not material, to the Master Trust,
on behalf of the Sub-Trust, or any other person, and any defense of
breach of warranty or misrepresentation, and irrespective of any other
circumstance which might otherwise constitute a legal or equitable
discharge or defense of an insurer, surety or guarantor under any and
all circumstances. The enforceability and effectiveness of this
Agreement and the liability of the Master Trust, on behalf of the
Sub-Trust, and the rights, remedies, powers and privileges of Arnbac
Assurance under this Agreement shall not be affected, limited, reduced,
discharged or terminated, and the Master Trust, on behalf of the
Sub-Trust, hereby expressly waives, to the fullest extent permitted by
applicable law, any defense now or in the future arising by reason of:
(a) the illegality, invalidity or unenforceability of all or any part
of the Declaration;
(b) any action taken by Ambac Assurance;
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(c) any change in the direct or indirect ownership or control of
Ambac Assurance or of any shares or ownership interests thereof
(d) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of or for the Master
Trust, on behalf of the SubTrust;
provided, however, that notwithstanding the provisions of this Section
6.1, the Master Trust, on behalf of the Sub-Trust, shall have no
further obligations under this Agreement after the termination of this
Agreement. In addition, the breach of any covenant made in this
Agreement by the Master Trust, on behalf of the Sub-Trust, shall not
terminate this Agreement or limit the rights of Ambac Assurance
hereunder.
6.2 For the avoidance of doubt, no failure or delay by Ambac Assurance in
exercising its rights hereunder shall operate as a waiver of its rights
hereunder (except as specifically provided in this Agreement,
including, without limitation, in respect of the notice periods and
payment dates set forth in Section 3.2(a)) and, subject to the
termination of this Agreement not having occurred, Ambac Assurance may
continue to exercise its rights hereunder at any time.
7. Covenants
7.1 Ambac Assurance hereby covenants and agrees that, at all times prior to
the earlier of the termination of this Agreement or completion of the
sale of the Preferred Stock to the Master Trust, on behalf of the
Sub-Trust, pursuant to this Agreement, it shall not amend, restate,
revise or otherwise alter the rights, terms and preferences of the
Preferred Stock whether by operation of merger, reorganization or
otherwise, without the prior consent of the Master Trust, on behalf of
the Sub-Trust, and it will not register the Preferred Stock with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, on or before the Put Option Payment Date.
7.2 The Master Trust, on behalf of the Sub-Trust, hereby covenants and
agrees that, at all times prior to the earlier of the termination of
this Agreement or completion of the sale of the Preferred Stock to the
Master Trust, on behalf of the Sub-Trust, pursuant to this Agreement,
it shall not amend, restate, revise or otherwise alter the rights,
terms and preferences of the ABC Securities whether by operation of
merger, reorganization or otherwise and it will not register the ABC
Securities with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
7.3 Ambac Assurance hereby covenants and agrees that any Preferred Stock
delivered to the Master Trust, on behalf of the Sub-Tnrst, shall rank,
at the time of delivery, (a) senior to the common stock ofAmbac
Assurance and (b) senior to or pari passu with the most
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senior preferred shares of Ambac then authorized by its Restated
Articles of Amendment or then issued and outstanding; provided that
this covenant may be amended with the consent of Ambac Assurance and at
least a Majority in Face Amount (as defined in the Declaration) of the
ABC Securities.
7.4 Ambac Assurance hereby covenants and agrees that if Ambac Assurance's
financial strength rating is ever lowered while this Agreement remains
effective, Ambac Assurance shall provide written notice to the Trustee,
on behalf of the Sub-Trust, of such lowered rating.
7.5 Ambac Assurance hereby covenants and agrees that it will not pay a
dividend on its common stock pursuant to the first and second provisos
of Section 4 of its Restated Articles of Incorporation unless it
receives written assurance from Ambac Financial Group, Inc. that it
will use such dividends for the purposes permitted by such provisos.
Such written assurance shall provide that the holders of the Preferred
Stock shall be third party beneficiaries of, and entitled to enforce,
the provisions of such assurance as if they were parties thereto. The
agreements and rights set forth in this Section 7.5 shall survive the
exercise by Ambac Assurance of its rights under this Agreement, the
issuance of the Preferred Stock and the liquidation of the Sub-Trust.
8. This Agreement to Govern
If there is any inconsistency between any provision of this Agreement
and any other agreement, the provisions of this Agreement shall prevail
to the extent of such inconsistency but not otherwise.
9. Representations and Warranties
9.1 The Master Trust represents and warrants to Ambac Assurance, on behalf
of the SubTrust, that, as of the date hereof:
(a) the Master Trust is duly organized and validly existing under the
Delaware Business Trust Act and has the power and authority to
own its assets and to conduct the activities which it conducts;
(b) the Sub-Trust has been duly formed by the Master Trust in
accordance with its Declaration;
(c) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under this Agreement do not and
will not violate (1) any law to which it is subject, (2) any of
its constitutional documents or (3) any agreement to which it is
a party or which is binding on it or its assets;
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(d) it has the power to enter into, exercise its rights and perform
and comply with its obligations under this Agreement and has
taken all necessary action to authorize the execution, delivery
and performance of this Agreement;
(e) it will obtain and maintain in effect and comply with the terms
of all necessary consents, registrations and the like of or
with any government or other regulatory body or authority
applicable to this Agreement;
(f) its obligations under this Agreement are valid, binding and
enforceable at law;
(g) it is not in default under any agreement to which it is a party
or by which it or its assets is or are bound and no litigation,
arbitration or administrative proceedings are current or pending,
which default, litigation, arbitration or administrative
proceedings are material in the context of this Agreement;
(h) it is not necessary or advisable in order to ensure the validity,
effectiveness, performance or enforceability of this Agreement
that any document be filed, registered or recorded in any public
office or elsewhere;
(i) each of the above representations and warranties will be correct
and complied with in all respects during the term of this
Agreement;
(j) no consent, approval, authorization or order of any court or
governmental authority, agency, commission or commissioner or
other regulatory authority is required for the consummation by
the Master Trust, on behalf of the Sub-Trust, of the transactions
contemplated by this Agreement; and
(k) assuming compliance with the transfer restrictions with respect
to the ABC Securities set forth in the Declaration, neither the
Sub-Trust nor the Master Trust is required to register with the
Securities and Exchange Commission as an investment company under
the Investment Company Act of 1940, as amended.
9.2 Ambac Assurance represents and warrants to the Master Trust, on behalf
of the SubTrust, that, as of the date hereof:
(a) it is duly organized and validly existing as a corporation under
the corporate law statutes of the State of Wisconsin and has the
power and authority to own its assets and to conduct the
activities which it conducts;
(b) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under this Agreement do not and
will not violate (1) any law to which it is subject, (2) any of
its constitutional documents or (3) any agreement to which it is
a party or which is binding on it or its assets;
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(c) it has the power to enter into, exercise its rights and perform
and comply with its obligations under this Agreement and has
taken all necessary action to authorize the execution, delivery
and performance of this Agreement;
(d) it will obtain and maintain in effect and comply with the terms
of all necessary consents, registrations and the like of or with
any government or other regulatory body or authority applicable
to this Agreement;
(e) its obligations under this Agreement are valid, binding and
enforceable at law;
(f) it is not in default under any agreement to which it is a party
or by which it or its assets is or are bound and no litigation,
arbitration or administrative proceedings are current or pending,
which default, litigation, arbitration or administrative
proceedings are material in the context of this Agreement;
(g) it is not necessary or advisable in order to ensure the validity,
effectiveness, performance or enforceability of this Agreement
that any document be filed, registered or recorded in any public
office or elsewhere;
(h) each of the above representations and warranties will be correct
and complied with in all respects during the term of this
Agreement;
(i) no consent, approval, authorization or order of any court or
governmental authority, agency, commission or commissioner or
other regulatory authority is required for the consummation by
Ambac Assurance of the transactions contemplated by this
Agreement and the sale of the Preferred Stock to the Master
Trust, on behalf of the Sub-Trust, pursuant to the terms hereof
need not be registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended; and
(j) as of the Put Option Payment Date, the Preferred Stock will be
duly authorized for issuance and sale to the Master Trust, on
behalf of the Sub-Trust, pursuant to this Agreement and, when
issued and delivered by Ambac Assurance pursuant to this
Agreement against payment of the Put Option Price, will be
validly issued, fully paid and nonassessable; the Preferred Stock
will conform in all respects to the terms of the Preferred Stock
set forth in the Restated Articles of Incorporation of Ambac
Assurance attached hereto as Annex C; and the Preferred Stock
will not be subject to preemptive or other similar rights.
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10. Severability
10.1 Any provision of this Agreement which is or becomes illegal, invalid or
unenforceable in any jurisdiction may be severed from the other
provisions of this Agreement without invalidating the remaining
provisions hereof, and any such illegality, invalidity or
unenforceability shall not invalidate or render illegal or
unenforceable such provision in any other jurisdiction.
11. Notices
11.1 Each communication to be made hereunder shall be deemed to have been
given (i) five (5) days after deposit of such communication with a
reputable national courier service addressed to such party at its
address specified below (or at such other address as such party shall
specify to the other party hereto in writing) or (ii) when transmitted
by facsimile to such party at its fccsimile number specified below (or
at such other facsimile number as such party shall specify to the other
party hereto in writing):
If to Ambac Assurance at:
Ambac Assurance Corporation
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
Treasurer Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇ ▇▇▇▇▇, General Counsel
If to the Master Trust or Sub-Trust at:
The Bank of New York (Delaware)
P.O. Box 6973
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copies to:
The Bank of New York
Corporate Trust Administration
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Attention: Dealing and Trading Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12. Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when
executed and delivered shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
13. Benefit of Agreement and Disclaimer
13.1 This Agreement shall enure to the benefit of each party hereto and its
successors and assigns and transferees; provided that neither party
hereto may transfer its rights and obligations hereunder, by operation
of law or otherwise, without the prior written consent of the other
party.
14. Amendment and Assignment
14.1 This Agreement may not be amended or modified in any respect, nor may
any provision be waived, without the written agreement of both parties.
No waiver by one party of any obligation of the other hereunder shall
be considered a waiver of any other obligation of such party.
14.2 Neither the Master Trust, on behalf of the Sub-Trust, nor Ambac
Assurance may assign its rights or obligations under this Agreement to
any other person, except that Ambac Assurance may assign its rights and
obligations under this Agreement to another person as a result of a
merger of Ambac Assurance with another person or as a result of a sale
of all or substantially all of the assets of Ambac Assurance to another
person if the other person expressly assumes all of the rights and
obligations of Ambac Assurance under this Agreement; and immediately
following the merger or sale of substantially all of its assets, the
rating of the substitute preferred stock or the unsecured debt
obligations of the other person is at least as high as the credit
rating of the Preferred Stock or the general unsecured debt obligations
of Ambac Assurance, as the case may be (or if no such ratings exist,
the financial strength rating of Ambac Assurance) immediately prior to
the merger or sale.
15. Governing Law
15.1 THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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16. Jurisdiction
16.1 Each of the parties hereto irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of New York in respect of any
action or proceeding arising out of or in connection with this
Agreement ("Proceedings"). Each of the parties hereto irrevocably
waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue
of any such Proceedings in the courts of the State of New York and any
claim that any Proceeding brought in any such court has been brought in
an inconvenient forum. Each of the Master Trust, on behalf of the
Sub-Trust, and Ambac Assurance agrees that it shall at all times have
an authorized agent in the State of New York upon whom process may be
served in connection with any Proceedings, and each of the Master
Trust, on behalf of the Sub-Trust, and Ambac Assurance hereby
authorizes and appoints the Trustee to accept service of all legal
process arising out of or connected with this Agreement in the State of
New York and service on such person (or substitute) shall be deemed to
be service on the Master Trust, on behalf of the Sub-Trust, or Ambac
Assurance, as the case may be. Except upon such a substitution, the
Master Trust, on behalf of the Sub-Trust, and Ambac Assurance shall not
revoke any such authority or appointment and shall at all times
maintain an agent for service of process in the State of New York. If
for any reason such person shall cease to act as agent for the service
of process, the Master Trust, on behalf of the Sub-Trust, and Ambac
Assurance shall promptly appoint another such agent, and shall
forthwith notify each other of such appointment. The submission to
jurisdiction reflected in this paragraph shall not (and shall not be
construed so as to) limit the right of any person to take Proceedings
in any court of competent jurisdiction, nor shall the taking of
Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if
and to the extent permitted by law.
17. Limitation of Liability
17.1 It is expressly understood that (a) this Agreement is executed and
delivered by The Bank of New York (Delaware), not individually or
personally but solely as Trustee, in the exercise of the powers and
authority conferred and vested in it under the Declaration, (b) each of
the representations, undertakings and agreements herein made on the
part of the Master Trust, on behalf of the Sub-Trust, is made and
intended not as personal representations, undertakings and agreements
by The Bank of New York (Delaware), but is made and intended for the
purpose of binding only the Master Trust, on behalf of the Sub-Trust,
and (c) under no circumstances shall The Bank of New York (Delaware) be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Master
Trust, on behalf of the Sub-Trust, under this Agreement or the other
related documents.
15
IN WITNESS WHEREOF the parties hereto have caused this Put Option
Agreement to be duly executed as of the day and year first above written.
DUTCH HARBOR FINANCE MASTER TRUST,
on behalf of its series, Dutch Harbor
Finance SubTrust I,
By: The Bank of New York (Delaware),
not in its individual capacity but
solely as Trustee
By: _____________________________________
Name:
Title:
AMBAC ASSURANCE CORPORATION
By: _____________________________________
Name:
Title:
16
ANNEX A
Form of Put Notice
To: Dutch Harbor Finance Sub-Trust 1
c/o Bank of New York (Delaware)
P.O. Box 6973
502 ▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Dealing and Trading Group
Date:
Ladies and Gentlemen:
We refer to the put option agreement dated December 3, 2001 (as heretofore
amended, the "Put Option Agreement") entered into between us and you. Terms
defined in the Put Option Agreement (except where otherwise defined herein)
shall have the same respective meanings herein.
This notice is the notice for the purposes of Section 3.2(a) of the Put Option
Agreement. We hereby require you to pay the Put Option Price on the Put Option
Payment Date, which shall be [ ] to the following account:
[ ]
Yours faithfully,
for and on behalf of
Ambac Assurance Corporation
ANNEX B
Put Option Premium Certificate
Ambac Assurance Corporation
Put Option on Auction Market Preferred Shares
--------------------------------------------------------------------------------
1. Distribution Period: [first day of Period]-[last day of Period]: [number of
days in period-generally 28]
2. Auction Rate determined for the Distribution Period on [insert date of
Auction]. 0.000000% $ (0)
3.
Issuer Ratings Purchase Price Yield to Maturity Interest
------------- --------- ---------------- ------------------- ------------
One Corp A1+/Pl
Two Corp A1+/P1
Three Corp A1+/P1
Four Corp A1+/P1
Five Corp A1+/P1
Six Corp A1+/P1
Seven Corp A1+/P1
Eight Corp A1+/P1
Nine Corp Al/P1
Ten Corp Al/P1
------------- --------- ---------------- ------------------- ------------
4. 000,000,000 0.0% $ 0.0
5. Applicable Federal Funds Effective Rate: 0.00% 0.0% $ 0.0
6. Broker-Dealer Fee 0.0% $ (0.0)
7. Trustee, Custodian and IPA Fees 0.0% $ (0.0)
8. Asset Management Fee 0.0% $ (0.0)
9. Tax Matters Partner Fee 0.0% $ (0.0)
10. Servicing Agent Fee 0.0% $ (0.0)
11. Other Fees and Expenses for the Distribution
Period, if any 0.0% $ (0.0)
12. Computation of Put Premium Due on [insert
Distribution PaymentDate] by 11:00 a.m. ------------------- ------------
New York Time: 0.0% $ (0.0)
------------------- ------------
13. The asset manager is in compliance with the investment policy.