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J P MORGAN CHASE & CO - 10-K - 20050302 - EXHIBIT_4
Exhibit 4.10(a)
BANC ONE CORPORATION
AND
THE CHASE MANHATTAN BANK
TRUSTEE
INDENTURE
DATED AS OF MARCH 3, 1997
SUBORDINATED DEBT SECURITIES
Page 1
TABLE OF CONTENTS(1)
Page
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ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions........................................... 2
"this Indenture" and certain other terms.............. 2
"Act"................................................. 3
"Affiliate"........................................... 3
"Authenticating Agent"................................ 3
"Authorized Newspaper"................................ 3
"Authorized Officer".................................. 3
"Bearer Security"..................................... 3
"Board of Directors".................................. 3
"Board Resolution".................................... 3
"Business Day"........................................ 4
"CEDEL; CEDEL S.A."................................... 4
"Commission".......................................... 4
"Common Depositary"................................... 4
"Company"............................................. 4
"Company Request" and "Company Order"................. 4
"corporation"......................................... 4
"coupon".............................................. 4
"Default"............................................. 4
"Defaulted Interest".................................. 4
"Depositary".......................................... 5
"Designated Currency"................................. 5
"Dollar".............................................. 5
"ECU"................................................. 5
"Euroclear"........................................... 5
"European Communities"................................ 5
"Event of Default".................................... 5
"Exchange Act"........................................ 5
"Exchange Rate"....................................... 5
"Exchange Rate Officer's Certificate"................. 5
"Existing Subordinated Indebtedness".................. 6
"Foreign Currency".................................... 6
"General Obligations"................................. 6
"Global Exchange Rate"................................ 7
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(1) This Table of Contents is not part of the Indenture.
Page 2
CONTENTS, p. 2
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"Global Security" ............................ 7
"Holder" ..................................... 7
"interest" ................................... 7
"Interest Payment Date" ...................... 7
"Maturity" ................................... 7
"Officers' Certificate" ...................... 7
"Opinion of Counsel" ......................... 7
"Original Issue Discount Security" ........... 8
"Outstanding" ................................ 8
"Paying Agent" ............................... 9
"Person" ..................................... 9
"Place of Payment" ........................... 9
"Predecessor Security" ....................... 9
"Principal Corporate Trust Office" ........... 9
"Principal Paying Agent" ..................... 9
"Redemption Date" ............................ 10
"Redemption Price" ........................... 10
"Registered Security" ........................ 10
"Regular Record Date" ........................ 10
"Remarketing Entity" ......................... 10
"Repayment Date" ............................. 10
"Repayment Price" ............................ 10
"Responsible Officer" ........................ 10
"Security"; "Securities" ..................... 10
"Security Register" .......................... 11
"Security Registrar" ......................... 11
"Senior Indebtedness" ........................ 11
"Special Record Date" ........................ 11
"Stated Maturity" ............................ 11
"Subsidiary of the Company" or "Subsidiary"... 11
"Trustee" .................................... 12
"Trust Indenture Act" or "TIA" ............... 12
"United States" .............................. 12
"United States Alien" ........................ 12
"vice president" ............................. 12
SECTION 1.02. Compliance Certificates and Opinions ......... 12
SECTION 1.03. Form of Documents Delivered to Trustee ....... 13
SECTION 1.04. Acts of Holders .............................. 14
SECTION 1.05. Notices, etc., to Trustee and Company ........ 17
SECTION 1.06. Notices to Holders; Waiver ................... 18
SECTION 1.07. Language of Notices, Etc ..................... 19
SECTION 1.08. Conflict with Trust Indenture Act ............ 19
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Page 3
CONTENTS, p. 3
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SECTION 1.09. Effect of Headings and Table of Contents ............ 20
SECTION 1.10. Successors and Assigns .............................. 20
SECTION 1.11. Separability Clause ................................. 20
SECTION 1.12. Benefits of Indenture ............................... 20
SECTION 1.13. Legal Holidays ...................................... 20
SECTION 1.14. Governing Law ....................................... 21
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally ...................................... 21
SECTION 2.02. Form of Securities .................................. 21
SECTION 2.03. Form of Trustee's Certificate of Authentication ..... 22
SECTION 2.04. Global Securities ................................... 22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms ..................................... 23
SECTION 3.02. Denominations ....................................... 27
SECTION 3.03. Execution, Authentication, Delivery and Dating ...... 27
SECTION 3.04. Temporary Securities ................................ 31
SECTION 3.05. Registration, Registration of Transfer and Exchange . 35
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities .... 40
SECTION 3.07. Payment of Interest; Interest Rights Preserved ...... 41
SECTION 3.08. Persons Deemed Owners ............................... 44
SECTION 3.09. Cancellation ........................................ 44
SECTION 3.10. Computation of Interest ............................. 45
SECTION 3.11. Forms of Certification .............................. 45
SECTION 3.12. Judgments ........................................... 46
SECTION 3.13. CUSIP Numbers ....................................... 46
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Page 4
CONTENTS, p. 4
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ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article .................................. 47
SECTION 4.02. Election to Redeem; Notice to Trustee ..................... 47
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed .............................. 47
SECTION 4.04. Notice of Redemption ...................................... 48
SECTION 4.05. Deposit of Redemption Price ............................... 49
SECTION 4.06. Securities Payable on Redemption Date ..................... 49
SECTION 4.07. Securities Redeemed in Part ............................... 50
SECTION 4.08. Redemption Suspended During Event of Default .............. 51
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest ................ 51
SECTION 5.02. Maintenance of Office or Agency ........................... 52
SECTION 5.03. Money for Security Payments to Be Held in Trust ........... 54
SECTION 5.04. Additional Amounts ........................................ 56
SECTION 5.05. Statement as to Compliance ................................ 57
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.. 57
ARTICLE SIX
Holder's Lists and Reports
by Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.. 58
SECTION 6.02. Preservation of Information; Communications to Holders .... 58
SECTION 6.03. Reports by Trustee ........................................ 60
SECTION 6.04. Reports by Company ........................................ 61
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Page 5
CONTENTS, p. 5
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ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default .................................. 62
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.. 63
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee .................... 64
SECTION 7.04. Trustee May File Proofs of Claim ................... 65
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities ...................... 66
SECTION 7.06. Application of Money Collected ..................... 66
SECTION 7.07. Limitation on Suits ................................ 67
SECTION 7.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest .......................... 69
SECTION 7.09. Restoration of Rights and Remedies ................. 69
SECTION 7.10. Rights and Remedies Cumulative ..................... 69
SECTION 7.11. Delay or Omission Not Waiver ....................... 70
SECTION 7.12. Control by Noteholders ............................. 70
SECTION 7.13. Waiver of Past Defaults ............................ 70
SECTION 7.14. Undertaking for Costs .............................. 71
SECTION 7.15. Waiver of Stay or Extension Laws ................... 71
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities ................ 72
SECTION 8.02. Notice of Default .................................. 73
SECTION 8.03. Certain Rights of Trustee .......................... 74
SECTION 8.04. Not Responsible for Recitals or Issuance of Notes .. 76
SECTION 8.05. May Hold Securities ................................ 76
SECTION 8.06. Money Held in Trust ................................ 76
SECTION 8.07. Compensation and Reimbursement ..................... 76
SECTION 8.08. Disqualification; Conflicting Interests ............ 77
SECTION 8.09. Corporate Trustee Required; Eligibility ............ 77
SECTION 8.10. Resignation and Removal; Appointment of Successor .. 78
SECTION 8.11. Acceptance of Appointment by Successor ............. 80
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Page 6
CONTENTS, p. 6
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SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee .......................... 82
SECTION 8.13. Preferential Collection of Claims against Company..... 82
SECTION 8.14. Appointment of Authenticating Agents ................. 82
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders ... 85
SECTION 9.02. Supplemental Indentures With Consent of Holders ...... 87
SECTION 9.03. Execution of Supplemental Indentures ................. 88
SECTION 9.04. Effect of Supplemental Indentures .................... 88
SECTION 9.05. Conformity with Trust Indenture Act .................. 88
SECTION 9.06. Reference in Securities to Supplemental Indentures ... 89
SECTION 9.07. Subordination Unimpaired ............................. 89
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.. 89
SECTION 10.02. Successor Corporation Substituted .................... 90
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture .............. 90
SECTION 11.02. Application of Trust Money ........................... 92
SECTION 11.03. Reinstatement ........................................ 92
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Page 7
CONTENTS, p. 7
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ARTICLE TWELVE
Immunity of Incorporations, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability ...................... 93
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article ................................. 93
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities .... 94
SECTION 13.03. Redemption of Securities for Sinking Fund ................ 94
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement to Subordinate ................................. 95
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization; Subrogation of
Securities .......................................... 95
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under Senior Indebtedness ... 99
SECTION 14.04. Payments on Securities Permitted ......................... 100
SECTION 14.05. Authorization of Holders to Trustee to
Effect Subordination ................................ 100
SECTION 14.06. Notice To Trustee ........................................ 101
SECTION 14.07. Right of Trustee to Hold Senior
Indebtedness or General Obligations ................. 101
SECTION 14.08. Article Fourteen Not to Prevent
Defaults or Events of Default ....................... 101
SECTION 14.09. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases .. 101
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Page 8
CONTENTS, p. 8
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ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article ......................... 104
SECTION 15.02. Repayment of Securities .......................... 104
SECTION 15.03. Exercise of Option; Notice ....................... 104
SECTION 15.04. Election of Repayment by Remarketing Entities .... 106
SECTION 15.05. Securities Payable on the Repayment Date ......... 106
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be Called ........ 107
SECTION 16.02. Call, Notice and Place of Meetings ............... 107
SECTION 16.03. Persons Entitled to Vote at Meetings ............. 108
SECTION 16.04. Quorum; Action ................................... 108
SECTION 16.05. Determination of Voting Rights;
Conduct and Adjournment of Meetings ......... 109
SECTION 16.06. Counting Votes and Recording Action of Meetings .. 110
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts ..................................... 111
TESTIMONIUM ...................................................... 112
SIGNATURES AND SEALS ............................................. 112
ACKNOWLEDGMENTS .................................................. 113
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. in
Connection with the Exchange of a
Portion of a Temporary Global Security
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Page 9
Contents, p. 9
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EXHIBIT C. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
Prior to an Exchange Date
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Page 10
CONTENTS, p. 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
Reflected in Indenture
Section
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TIA
Section 310(a)(1)......................................................... 8.09
(a)(2)......................................................... 8.09
(a)(3)......................................................... Not Applicable
(a)(4)......................................................... Not Applicable
(a)(5)......................................................... 8.09
(b)............................................................ 8.08
8.10
(c)............................................................ Not Applicable
Section 311(a)............................................................ 8.13
(b)............................................................ 8.13
Section 312(a)............................................................ 6.01
6.02(i)
(b)............................................................ 6.02(ii)
(c)............................................................ 6.02(iii)
Section 313(a)............................................................ 6.03(i)
(b)............................................................ 6.03(ii)
(c)............................................................ 6.03(i), (ii) and (iii)
(d)............................................................ 6.03(iii)
Section 314(a)............................................................ 6.04
5.05
(b)............................................................ Not Applicable
(c)(1)......................................................... 1.02
(c)(2)......................................................... 1.02
(c)(3)......................................................... Not Applicable
(d)............................................................ Not Applicable
(e)............................................................ 1.02
(f)............................................................ Not Applicable
Section 315(a)............................................................ 8.01(i)
8.01(iii)
(b)............................................................ 8.02
(c)............................................................ 8.01(ii)
(d)............................................................ 8.01
(d)(1)......................................................... 8.01(i)
(d)(2)......................................................... 8.01(iii)(b)
(d)(3)......................................................... 8.01(iii)(c)
(e)............................................................ 7.14
Section 316(a)............................................................ 1.01
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Page 11
CONTENTS, p. 11
Reflected in Indenture
Section
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Section 316(a)(1)(A)................................................... 7.02
7.12
(a)(1)(B)................................................... 7.13
(a)(2)...................................................... Not Applicable
(b)......................................................... 7.08
(c)......................................................... 1.04(viii)
Section 317(a)(1)...................................................... 7.03
(a)(2)...................................................... 7.04
(b)......................................................... 5.03
Section 318(a)......................................................... 1.08
(c)......................................................... 1.08
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THIS INDENTURE is entered into as of March 3, 1997, between BANC ONE
CORPORATION, a corporation organized and existing under the laws of the State of
Ohio (hereinafter called the "Company"), having its principal executive office
at 100 East Broad Street, Columbus, Ohio 43271, and THE CHASE MANHATTAN BANK, a
New York banking corporation (hereinafter called the "Trustee"), having its
principal corporate trust office at 450 W. 33rd Street, 15th Floor, New York,
New York 10001.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles", "Sections" and
other subdivisions are to the designated Articles, Sections and other
subdivisions of this Indenture. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein; and
(V) all accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except
as may be otherwise expressly provided herein or in one or more indentures
supplemental hereto, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the country
of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the Treasurer, the Secretary, the
Comptroller, any Assistant Comptroller, any Assistant Treasurer or any Assistant
Secretary of the Company.
Page 13
"Bearer Security" means any Security in the form established pursuant to Section
2.02 which is payable to bearer, including, without limitation, unless the
context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which banking
institutions in the City of Columbus, Ohio and any Place of Payment for the
Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonymne or its successors.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if any time after the execution
and delivery of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first paragraph of this
instrument until any successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of a Global Security, the Person designated as Depositary by
the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to time
by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System.
"European Communities" means the European Economic Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in Section
3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
Page 14
"Exchange Rate Officer's Certificate" with respect to any date for the payment
of principal of (and premium, if any) and interest on any series of Securities,
means a certificate setting forth the applicable Exchange Rate and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU, any other
composite currency or Foreign Currency, and signed by the Chairman of the Board,
a Vice Chairman of the Board, the President, any Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed
pursuant to Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.01, the Company's
7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74% Subordinated
Notes Due September 15, 2003, the Company's 7.00% Subordinated Notes Due July
15, 2005, the Company's 9.875% Subordinated Notes Due March 1, 2009, the
Company's 10.00% Subordinated Notes Due August 15, 2010, the Company's 7.75%
Subordinated Debentures Due July 15, 2025 and the Company's 7.625% Subordinated
Debentures Due October 15, 2026.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to any
series of Securities pursuant to Section 3.01, all obligations of the Company to
make payment on account of claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements, other than (i) obligations on account of Senior Indebtedness, (ii)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the Securities and (iii) obligations which by their terms
are expressly stated not to be superior in right of payment to the Securities or
to rank on a parity with the Securities; provided, however, that notwithstanding
the foregoing, in the event that any rule, guideline or interpretation
promulgated or issued by the Board of Governors of the Federal Reserve System
(or other competent regulatory agency or authority), as from time to time in
effect, establishes or specifies criteria for the inclusion in regulatory
capital of subordinated debt of a bank holding company requiring that such
subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors, as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4) of
the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of a series
of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose name
such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any series of Securities,
means the Stated Maturity of an installment of interest on such Securities.
"Maturity", when used with respect to any Security, means the date on which the
principal of such Security (or any installment of principal) becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board,
the President, a Vice Chairman of the Board, or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall contain the statements set forth in Section
1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of any series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
Page 15
(ii) such Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been authenticated
and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the principal
of, premium, if any, or interest on any Securities or any coupons appertaining
thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest on the Securities of that series
are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument
"Principal Paying Agent" means the Paying Agent, if any, designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means
the price specified in such Security at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security in the form established pursuant to
Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any Interest
Payment Date means the date, if any, specified in such Security as the "Regular
Record Date".
"Remarketing Entity", when used with respect to the Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
Page 16
"Responsible Officer", when used with respect to the Trustee, means any officer
of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case may be,
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and interest on
(i) all of the Company's indebtedness for money borrowed, other than the
Securities and the Existing Subordinated Indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Securities or the Existing
Subordinated Indebtedness and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means the date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any installment of
principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security, or such installment
of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having ordinary
voting power for the election of directors irrespective of whether or not stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly provided)
means the Trust Indenture Act of 1939, as in force at the date as of which this
instrument was executed, and, to the extent required by law, as amended.
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a nonresident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Page 17
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except as otherwise expressly provided
in this Indenture) shall include:
(i) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the Security
Register.
(iv) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer
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Security is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of any
action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(vii) For purposes of determining the principal amount of Outstanding Securities
of any series the Holders of which are required, requested or permitted to give
any request, demand, authorization, direction, notice, consent, waiver or take
any other Act under the Indenture, each Security denominated in a Foreign
Currency or composite currency shall be deemed to have the principal amount
determined by the Exchange Rate Agent by converting the principal amount of such
Security in the currency in which such Security is denominated into Dollars at
the Exchange Rate as of the date such Act is delivered to the Trustee and, where
it is hereby expressly required, to the Company, by Holders of the required
aggregate principal amount of the Outstanding Securities of such series (or, if
there is no such rate on such date, such rate on the date determined as
specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust Indenture
Act, set a record date for purposes of determining the identity of Holders of
Securities of any series entitled to give any request, demand, authorization,
direction, notice, consent, waiver or take any other Act, or to vote or consent
to any action by vote or consent authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such Series made by any Person
in respect of any such action, or in the case of any such vote, prior to such
vote, such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Securities furnished to the Trustee pursuant to Section 6.01 prior to such
solicitation. (ix) Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount. Any notice
given or action taken by a Holder or its agents with regard to different parts
of such principal amount pursuant to this paragraph shall have the same effect
as if given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless otherwise specified
pursuant to Section 3.01 or pursuant to one or more indentures supplemental
hereto, a Holder, including a Depositary that is the Holder of a Global
Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Principal Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class, postage prepaid, to the Company, to the attention of its
Treasurer, addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any Security
provides for notice to Holders of any event,
Page 19
(1) such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first-class, postage
prepaid, to each Holder of Registered Securities affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
(2) such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and, if the
Securities of such series are then listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited and such stock exchange
shall so require, in London and, if the Securities of such series are then
listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are then listed on
any other stock exchange and such stock exchange shall so require, in any other
required city outside the United States, or, if not practicable, elsewhere in
Europe on a Business Day at least twice, the first such publication to be not
earlier than the earliest date, and not later than the latest date, prescribed
for the giving of such notice. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered Securities by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder of Registered
Securities shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice by publication
to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, Etc. Any request, demand, authorization,
direction, notice, consent, or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 and 318, inclusive, of the TIA,
such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders and, to the extent provided
in Article Fourteen hereof, the holders of Senior Indebtedness and creditors in
respect of General Obligations, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, in any case where any
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date of any
Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment or Redemption Date or on the date on which Defaulted
Interest is proposed to be paid and, if such payment is made, no interest shall
accrue on such payment for the period from and after any such Interest Payment
Date, Stated Maturity, Repayment Date or Redemption Date or date on which
Defaulted Interest is proposed to be paid, as the case may be.
Page 20
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Form Generally. All Securities and any related coupons shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
The Trustee's certificates of authentication shall be in substantially the form
set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution or an
indenture supplemental hereto. Upon or prior to the delivery of a Security or
coupons in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following: (i) such indenture supplemental hereto or
the Board Resolution by or pursuant to which such form of Security or coupons
has been approved, certified by the Secretary or an Assistant Secretary of the
Company;
(ii) the Officers' Certificate required by Section 3.01 of this Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as permitted by
Section 3.04, the form thereof shall be established as provided in Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
AS TRUSTEE
by_______________________
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are issuable in whole
or in part in global form, as specified as contemplated by Section 3.01, then,
notwithstanding clause (xii) of Section 3.01 and the provisions of Section 3.02,
such Global Security shall represent such of the outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced or increased to reflect exchanges or increased to
reflect the issuance of additional uncertificated securities of such series. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or Section 3.04.
Page 21
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(i) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial public
offering price of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series pursuant to this Article Three or Sections 4.07,
9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of the
Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the Regular
Record Date for the interest payable on any Interest Payment Date and the basis
upon which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in temporary or
permanent global form, and in such case, the Depositary for such Global Security
or Securities, the terms and conditions, if any, upon which such Global Security
may be exchanged in whole or in part for definitive securities, and the manner
in which any interest payable on a temporary or permanent Global Security will
be paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02, the
Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest, if any, on Securities of the
series shall be payable;
(x) the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which Registered Securities of the series shall be
issuable; and, if other than $5,000 or any integral multiple thereof, the
denominations in which Bearer Securities of the series shall be issuable;
(xiii) the currency or currencies of denominations of the Securities of any
series, which may be in Dollars, any Foreign Currency or any composite currency,
including but not limited to the ECU, and, if any such currency of denomination
is a composite currency other than the ECU, the agency or organization, if any,
responsible for overseeing such composite currency;
(xiv) the currency or currencies in which payment of the principal of (and
premium, if any) and interest on the Securities will be made, the currency or
currencies, if any, in which payment of the principal of (and premium, if any)
or the interest on Registered Securities,
Page 22
at the election of each of the Holders thereof, may also be payable and the
periods within which and the terms and conditions upon which such election is to
be made and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any) or any
interest on Securities of the series may be determined with reference to an
index, the method or methods by which such amounts shall be determined;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are to
be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if other
than the date of original issuance of the first Security of such series of like
tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be payable to
Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue Discount
Securities and the portion of the principal amount of such Securities which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants of the
Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any
indenture supplement hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
Notwithstanding Section 3.01(ii) and unless otherwise expressly provided with
respect to a series of Securities, the aggregate principal amount of a series of
Securities may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be issuable in
such form and denominations as shall be specified as contemplated by Section
3.01. In the absence of any specification with respect to the Securities of any
series, the Registered Securities of each series shall be issuable only as
Securities without coupons in denominations of $1,000 and any integral multiple
thereof and the Bearer Securities of each series, if any, shall be issuable with
coupons and in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or one of its Vice Presidents, or its
Treasurer and by its Secretary or one of its Assistant Secretaries. The
signatures of any or all of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Company's Chairman
of the Board, its President, a Vice Chairman of the Board or one of its Vice
Presidents, or its Treasurer.
Securities and coupons bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
Page 23
If the Company shall establish pursuant to Section 3.01 that the Securities of a
series are to be issued in whole or in part in the form of one or more Global
Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such Global Securities with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act,
and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 8.01) shall be fully protected in
relying upon, an Opinion of Counsel complying with Section 1.02 and stating
that,
(i) the form of such Securities and coupons, if any, has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been established in conformity with the provisions
of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general principles of
equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the issue
thereof will adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Board Resolution or Officers' Certificate otherwise
required pursuant to Section 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to this Section 3.03 at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued and such documents reasonably contemplate the
issuance of all Securities of such series; provided that any subsequent request
by the Company to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
that as of the date of such request, the statements made in the Officers'
Certificate or other certificates delivered pursuant to Sections 1.02 and 3.01
shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic (promptly confirmed in writing), electronic or written order of
Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication; and
unless otherwise specified as contemplated by Section 3.01, each Bearer Security
and any temporary Global Security referred to in Section 3.04 shall be dated as
of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been
Page 24
detached and canceled. Notwithstanding the foregoing, if any Security or portion
thereof shall have been duly authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancelation as provided in Section 3.09 together with a written
statement (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such Security or portion thereof has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order and
the receipt of the certifications and opinions required under Sections 3.01 and
3.03, the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denominations, substantially of the tenor of the definitive
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series which may be issuable as
Bearer Securities, such temporary Securities may be in global form, representing
such of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each of which
shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured coupons
and all matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in the provisos
to the third paragraph of Section 3.03. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global form, any such
temporary Global Security shall, unless otherwise provided in such temporary
Global Security, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of the operator of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of the Company by any Person authorized to give
such instructions, the Trustee or any Authenticating Agent shall endorse such
temporary Global Security to reflect the initial principal amount, or an
increase in the principal amount, of Outstanding Securities represented thereby.
Until such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security shall at
any time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security, and subject
to the second proviso in the following paragraph, the interest of a beneficial
owner of Securities of a series in a temporary Global Security shall be
exchanged for definitive Securities (including a definitive Global Bearer
Security) of such series and of like tenor following the Global Exchange Date
(as defined below) when the account holder instructs Euroclear or CEDEL S.A., as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form required
by Section 3.11(i), dated no earlier than 15 days prior to the Global Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security as the "Global Exchange Date" (the "Global Exchange Date"), the Company
shall deliver to the Trustee, or, if the Trustee appoints an Authenticating
Agent pursuant to Section 8.14, to any such Authenticating Agent, definitive
Securities in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. Unless otherwise specified
as contemplated by Section 3.01, such definitive Securities shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
may be specified by the Company, the Trustee or any such Authenticating Agent,
as may be
Page 25
appropriate. On or after the Global Exchange Date, such temporary Global
Security shall be surrendered by the Common Depositary to the Trustee or any
such Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee or any such Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary Global
Security, an equal aggregate principal amount of definitive Securities of the
same series, of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged, which, except as otherwise
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof; provided,
however, that unless otherwise specified in such temporary Global Security, upon
such presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary Global Security held
for its account then to be exchanged and a certificate dated the Global Exchange
Date or a subsequent date and signed by CEDEL S.A., as to the portion of such
temporary Global Security held for its account then to be exchanged, each in the
form required by Section 3.11(ii); and provided further that a definitive Bearer
Security (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the conditions set forth in the provisos to the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global Security, such
temporary Global Security shall be endorsed by the Trustee or any such
Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal amount
shall be reduced for all purposes by the amount so exchanged. Until so exchanged
in full, such temporary Global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Global Exchange Date shall be payable, without interest,
to Euroclear and CEDEL S.A. on or after such Interest Payment Date upon delivery
by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent, as the case may
be, of a certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Security on
such Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest to the Company on
Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With respect
to Registered Securities, the Company shall keep or cause to be kept a register
(sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar", as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have the City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in the City of New
York.
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of any such payment from the Company;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those
Page 26
coupons at an office or agency of a Paying Agent, maintained pursuant to Section
5.02 for such purpose, located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vii)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in part for
Securities of such series of like tenor and terms and in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a new
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive form, such
Global Securities shall be canceled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered
Page 27
in exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange
shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar shall
be required (i) to issue, register the transfer of or exchange any Securities of
any series during a period beginning at the opening of business 15 days before
the day of selection of Securities of such series to be redeemed and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security, or in exchange
for a Security with a destroyed, lost or stolen coupon, shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
Page 28
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless otherwise
provided as contemplated by Section 3.01, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall unless otherwise provided in such Security be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise specified as contemplated by Section 3.01, in case a
Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency
referred to in Section 3.05) on any Regular Record Date and before the opening
of business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of his having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest to the
Persons in whose names any such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities with respect to which there exists such default may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of, or in exchange for, or in
lieu of, any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any coupon
appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or
after the Interest Payment Date of such coupon at an office or agency maintained
for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any coupons
appertaining thereto and any temporary Global Security shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes
Page 29
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever whether or not such
Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating Agent or
the Security Registrar will have the responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interest of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest, and they shall be fully
protected in acting or refraining from acting on any such information provided
by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a series
of Securities, all Securities and coupons surrendered for payment, registration
of transfer, exchange, repayment or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered or surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All cancelled Securities or coupons held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and the
Trustee shall deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of each series
shall be computed as shall be specified as contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant to
Section 3.01:
(i) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by a Person entitled to receive a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A hereto, with only such changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with the exchange of a portion of a temporary Global Security, such
certification shall be provided substantially in the form of Exhibit B hereto,
with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with payment of interest with respect to a temporary Global Security
prior to the related Global Exchange Date, such certification shall be provided
substantially in the form of Exhibit C hereto, with only such changes as shall
be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by a beneficial owner of a portion of a
temporary Global Security in connection with payment of interest with respect to
a temporary Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit D hereto,
with only such changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to Section 3.01, for
the Securities of any series that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 3.01, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest on the Securities of any series and any
appurtenant coupons in a Foreign Currency, composite currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 3.01 is of the
essence and agrees that judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and
interest on such Securities and any appurtenant coupons shall, notwithstanding
any payment in any other currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any premium
and cost of exchange) in the country of issue of the Designated Currency in the
case of Foreign Currency or Dollars or in the international banking community in
the case of a composite currency on the Business Day immediately following the
day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
Page 30
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally in
use), and if, so, the Trustee shall use such numbers in notices of redemption or
other related material as a convenience to Holders; provided that any such
notice or other related material may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other related material and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and, except as otherwise specified as contemplated by Section 3.01
for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the Company
to redeem any Securities redeemable at the option of the Company shall be
evidenced by an Officers' Certificate. In case of any redemption at the election
of the Company of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee and the Security
Registrar of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be Redeemed. If
less than all the Securities of any series with the same terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal to
or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of Securities
of such series so selected for partial redemption shall be, in the case of
Registered Securities, equal to $1,000 or an integral multiple thereof or, in
the case of Bearer Securities, equal to $5,000 or an integral multiple thereof,
and the principal amount of any such Security which remains outstanding shall
not be less than the minimum authorized denomination for Securities of such
series.
The Security Registrar shall promptly notify the Company, the Trustee and the
Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given in the
manner provided in Section 1.06, not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the same
terms are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case of Bearer
Securities with all remaining coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price;
(vi) that the redemption is for a sinking fund, if such is the case; and
Page 31
(vii) the CUSIP number or the Euroclear or the CEDEL reference number (or any
other number used by a Depositary to identify such Securities), if any, of the
Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06(2) need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, on Company Request, by the Trustee in the name
and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening of
business on any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be redeemed
only in part shall be surrendered at the office or agency of the Company in a
Place of Payment therefor (with, if the Company or the Security Registrar so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The Trustee shall
not redeem any Securities (unless all Securities then Outstanding are to be
redeemed) or commence the giving of any notice of redemption of Securities
during the continuance of any Event of Default known to the Trustee, except that
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall, subject to the provisions of Section 14.04,
redeem such Securities, provided funds are deposited with it for such purpose.
Subject to the rights of the holders of Senior Indebtedness and creditors in
respect of General Obligations, except as aforesaid, any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
Page 32
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest. The Company covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest on the Securities
of such series in accordance with the terms of the Securities of such series,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
outside the United States upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally
mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a series are
issuable only as Registered Securities, the Company will maintain in each Place
of Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If Securities of a series may be issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in London
or Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations, and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Principal Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 5.04) at the place specified for the purpose as contemplated by
Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any particular
series pursuant to the provisions of this Indenture, no payment of principal,
premium or interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States; provided, however, payment of principal of and any premium and
interest denominated in Dollars (including additional amounts payable in respect
thereof) on any Bearer Security may be made at an office or agency of, and
designated by, the Company located in the United States if (but only if) payment
of the full amount of such principal, premium, interest or additional amounts in
Dollars at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or similar restrictions and the Trustee receives
an Opinion of Counsel that such payment within the United States is legal.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, at the option of the Holder of any Bearer Security or
related coupon, payment may be made by check in the currency designated for such
payment pursuant to the terms of such Bearer Security presented or mailed to an
address outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section and
may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints The Chase
Manhattan Bank, as its Paying Agent in the City of New York with respect to all
series of Securities having a Place of Payment in the City of New York.
Page 33
SECTION 5.03. Money for Security Payments To Be Held in Trust. If the Company
shall at any time act as its own Paying Agent for any series of Securities, it
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities of such series and any appurtenant coupons,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, at or prior to the opening of business on each due date of
the principal of, premium, if any, or interest on any Securities of such series
and any appurtenant coupons, deposit with a Paying Agent a sum sufficient to pay
the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any series
of Securities to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, premium, if any,
or interest on Securities of such series and any appurtenant coupons in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal,
premium or interest on the Securities of such series or any appurtenant coupons;
and
(iii) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent, and, upon such payments by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust, and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide for the
payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below- mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the
Page 34
Trustee or such Paying Agent the additional amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate (which need not comply with Section 1.02) (provided,
however, that one of the signatories of which shall be the Company's principal
executive officer, principal financial officer or principal accounting officer)
stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the Company has
fulfilled all its obligations and complied with all conditions and covenants
under this Indenture and under the terms of the Securities throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
condition or covenant specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if such an
event has occurred and is continuing, specifying such event known to him and the
nature and status thereof.
For purposes of this Section, compliance or default shall be determined without
regard to any period of grace or requirement of notice provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises. So long
as any of the Securities shall be Outstanding, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises to carry on its business; provided,
however, that nothing in this Section 5.06 shall (i) require the Company to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders, (ii) prevent any consolidation or merger of the
Company, or any conveyance or transfer of its property and assets substantially
as an entirety to any person, permitted by Article Ten, (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee (i) semiannually,
not more than 10 days after each March 1 and September 1, a list, in such form
as the Trustee may reasonably require, containing all the information in the
possession or control of the Company, any of its Paying Agents (other than the
Trustee) or the Security Registrar, if other than the Trustee, as to the names
and addresses of the Holders of Securities as of such March 1 and September 1,
as the case may be, and (ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is requested to be furnished; provided, however, that if and so long
as the Trustee is the Security Registrar for Securities of a series, no such
list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders. (i) The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Securities contained in the most recent list
furnished to the Trustee as provided in Section 6.01 and the names and addresses
of Holders of Securities received by the Trustee in its capacity as the Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(ii) If three or more Holders of Securities of any series (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(a) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of Securities
of such series or all Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 6.02(i), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such application.
Page 35
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders of Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
6.02(ii), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May l5 of each year
commencing with the year 1997, the Trustee shall mail to each Holder reports
concerning the Trustee and its action under the Indenture as may be required
pursuant to Section 313(a) of the Trust Indenture Act if and to the extent and
in the manner provided pursuant thereto. The Trustee shall also comply with the
other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail (1) to all
Holders of Registered Securities, as their names and addresses appear in the
Security Register and (2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose, and (3) except in the cases of reports under
Section 313(b)(2) of the Trust Indenture Act, to each Holder of a Security of
any series whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to the extent
provided in Section 6.03(ii), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (i) and (ii) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
Page 36
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default", with respect to any series
of Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) the entry of a decree or order by a court having jurisdiction in the
premises granting relief in respect of the Company in an involuntary case under
the Federal Bankruptcy Code, adjudging the Company a bankrupt, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Federal Bankruptcy Code or
any other applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian, assignee, trustee, sequestrator
(or other similar official) of the Company, or of substantially all of its
properties, or ordering the winding up or liquidation of its affairs under any
such law, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be adjudicated a bankrupt,
or the consent of the Company to the institution of bankruptcy proceedings
against it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or the
consent by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of its properties
under any such law; or
(iii) any other Event of Default provided with respect to Securities of that
series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to any series of Securities for which there are Securities
Outstanding occurs and is continuing, then, and in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of
such series (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) to be immediately due and payable, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences, and any Event of
Default giving rise to such declaration shall not be deemed to have occurred,
if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all Securities of such series;
(b) the principal of and premium, if any, on any Securities of such series which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor by the terms of the Securities
of such series;
(c) to the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates prescribed therefor by the terms
of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and all other amounts
due the Trustee under Section 8.07.
(ii) all other Defaults with respect to Securities of that series, other than
the nonpayment of the principal of Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 7.13.
No such recession shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default is made in the payment of any installment of interest on any
Security of any series when such interest becomes due and
Page 37
payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium, if any, on
any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to any series of Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal, premium, if
any, and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the Holders allowed
in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same, and any receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or under the Securities of any
series, or coupons (if any) appertaining thereto, may be prosecuted and enforced
by the Trustee without the possession of any of the Securities of such series or
coupons appertaining thereto or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07, be for the ratable benefit
of the Holders of the Securities of such series and coupons appertaining thereto
in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the Trustee
with respect to a series of Securities pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee, and, in case
of the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
Page 38
SECOND: Subject to Article Fourteen, to the payment of the amounts then due and
unpaid upon the Securities of such series and coupons for principal, premium, if
any, and interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest, respectively. The
Holders of each series of Securities denominated in ECU, any other composite
currency or a Foreign Currency and any matured coupons relating thereto shall be
entitled to receive a ratable portion of the amount determined by the Exchange
Rate Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in the
currency in which such series of Securities is denominated into Dollars at the
Exchange Rate as of the Business Day immediately preceding the date of payment;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any series or
any related coupons shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to Securities of such series;
(ii) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Default in its own name as
Trustee hereunder; (iii) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in Section 7.01;
or
(b) default in the payment of the principal of or premium, if any, on any
Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security of such series as
and when the same shall become due and payable, and continuance of such default
for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform any of the
other covenants or agreements on its part in the Securities of such series or in
this Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of series
of Securities other than that series) and continuance of such failure for a
period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same and stating that such notice is a
"Notice of Default" hereunder, shall have been given by registered mail to the
Company by the Trustee, or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Securities of such series at the
time Outstanding; or
(e) any other Default provided with respect to Securities of that Series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any Holder
of a Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any
Page 39
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, lost, destroyed or stolen
Securities or coupons in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder of any Security or coupon to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series; provided that
(i) such direction shall not be in conflict with any rule of law or with this
Indenture,
(ii) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder and its
consequences, except a default not theretofore cured (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default or
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Page 40
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to Securities of such
series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely
with respect to such series, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificate or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform as to form to the requirements of the Indenture.
(ii) In case a Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(iii) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that (a) this Subsection shall not be
construed to limit the effect of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken, suffered
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities of
any series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to Securities of
such series.
(d) No provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(iv) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence of any
Default hereunder with respect to Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 6.03(ii) notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of, premium, if any, or interest on any Security of such series, or any related
coupons or in the payment of any sinking fund installment with respect to
Securities of such series the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided further that in the case of
any default of the character specified in Section 7.07(d) with respect to
Securities of such series, no such notice to Holders of Securities of such
series shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default", with respect to Securities of
any series, means any event which is, or after notice or lapse of time, or both,
would become, a Default or an Event of Default with respect to Securities of
such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in Section
8.01:
(i) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
Page 41
(iii) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(vi) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, security or other
paper or document, but the Trustee, in its discretion, may make further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney and, if so requested to do so by any of the
Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article Eight shall also be afforded to
such Paying Agent, Authenticating Agent or Security Registrar;
(ix) the Trustee shall not be charged with knowledge of any Default unless
either (1) a Responsible Officer of the Trustee shall have actual knowledge of
such Default or (2) written notice of such Default shall have been given to the
Trustee by the Company or any Holder; and
(x) the Trustee shall not be liable for any action taken, suffered or omitted by
it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating Agent, any
Paying Agent, the Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 8.08 and 8.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees
(i) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Page 42
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest on particular Securities.
Without prejudice to any other rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in 7.01, the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of Section 310 of the
Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the indentures relating to Existing
Subordinated Indebtedness or to the Securities of any series by virtue of being
Trustee with respect to the Securities of any particular series of Securities
other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee with respect to each series of Securities hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $5,000,000, subject to supervision or examination by Federal or
State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at any time
by giving written notice thereof to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities at any
time by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to any
series of Securities after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of such series for at least
six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with respect to
any series of Securities and shall fail to resign after written request therefor
by the Company or by any Holder of Securities of such series, or
(c) the Trustee shall become incapable of acting with respect to any series of
Securities or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
Page 43
(v) If the Trustee shall resign, be removed or become incapable of acting with
respect to any series of Securities, or if a vacancy shall occur in the office
of Trustee with respect to any series of Securities for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 8.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been A bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of the
appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to all or any such series; but, on
request of the Company or such successor Trustee, such retiring Trustee shall
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of such retiring
Trustee with respect to all or any such series; and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to all or any such series, subject
nevertheless to its lien, if any, provided in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (b) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or
Page 44
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of Section 311
of the Trust Indenture Act regarding the collection of any claim as a creditor
against the Company (or any such other obligor). A Trustee that has resigned or
been removed shall be subject to and comply with said Section 311 to the extent
required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may appoint an
Authenticating Agent or Agents, which may include any Affiliate of the Company,
with respect to one or more series of Securities. Such Authenticating Agent or
Agents at the option of the Trustee shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, AS
Trustee,
by____________________________
As Authenticating Agent
by
AUTHORIZED OFFICER
Page 45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the
consent of any Holder of any Securities or coupons, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the Holders of
Securities of all or any series of Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Securities or coupons,
stating that such covenants are expressly being included solely for the benefit
of such series), or to surrender any right or power herein conferred upon the
Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under the Indenture;
provided that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect, or
(v) to add any additional Defaults or Events of Default with respect to all or
any series of the Securities (and, if such Default or Event of Default is
applicable to less than all series of Securities, specifying the series to which
such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of (or premium, if any)
or any interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form; provided any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this Indenture,
provided that any such addition, change or elimination (a) shall become
effective only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision or (b) shall not apply to any
Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as permitted
by Sections 2.02 and 3.01, or
(ix) to add to or change any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms thereof;
or
(xi) to add to or change or eliminate any provision of this Indenture as shall
be necessary or desirable in accordance with any amendments to the Trust
Indenture Act, provided such action shall not adversely affect the interest of
Holders of Securities of any series or any appurtenant coupons in any material
respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the consent
of the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected by such supplemental indenture or
indentures (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of each such series and any related coupons under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of any
installment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest thereon,
or change the obligation of the Company to pay additional amounts pursuant to
Section 5.04 (except as contemplated by Section 10.01(i) and permitted by
Section 9.01), or
Page 46
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 7.02, or change the method of calculating interest
thereon or the coin or currency in which any Security (or premium, if any,
thereon) or the interest thereon is payable, or reduce the minimum rate of
interest thereon, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver of certain
defaults hereunder and their consequences provided for in this Indenture or
reduce the requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or agency in
the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by and
complies with this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the TIA
as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental indenture executed
pursuant to this Article shall directly or indirectly modify the provisions of
Article Fourteen in any manner which might alter the subordination of the
Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The Company
shall not consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
unless
(i) the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer the properties and assets
of the Company substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest (including all additional amounts, if any, payable
pursuant to Section 5.04) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(ii) immediately after giving effect to such transaction, no Default, and no
event which, after notice or lapse of time, or both, would
Page 47
become a Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, the
Company as the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and may be dissolved, wound up and liquidated at
any time thereafter.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for and rights
to receive payments thereon and any right to receive additional amounts, as
provided in Section 5.04), and the Trustee, on receipt of a Company Request and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and delivered (other than (1)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
4.06, (3) coupons appertaining to Bearer Securities surrendered for repayment
pursuant to Section 15.03 and maturing after the Repayment Date, whose surrender
has been waived as provided in Section 15.03, (4) Securities and coupons which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (5) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee for cancelation; or
(b) all such Securities not theretofore delivered to the Trustee for cancelation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year, or
(3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount (said amount to be immediately due and payable to the
Holders) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for cancelation,
for principal, premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the Maturity or
Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable hereunder
by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
Page 48
SECTION 11.02. Application of Trust Money. Subject to the provisions of the last
paragraph of Section 5.03, all money deposited with the Trustee pursuant to
Section 11.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons, if any, and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is unable to
apply any money in accordance with Section 11.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 11.01 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
coupon, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.01 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security Registrar an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (ii) the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 13.02, and (iii) that none of such Securities has
theretofore been so credited and stating the basis for such credit, and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30
days before each sinking
Page 49
fund payment date the Security Registrar shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
4.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 4.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 4.06 and 4.07 and shall be
subject to Section 4.08.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement To Subordinate. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of a Security by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal and premium, if any, and interest on each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities. Upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a
court of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof (and, upon the
General Obligations and the creditors in respect thereof with respect to the
Securities and the Holders thereof) by a lawful plan of reorganization under
applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be entitled to receive
payment in full in accordance with the terms of such Senior Indebtedness of the
principal thereof, premium, if any, and the interest due thereon (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the Holders of the
Securities are entitled to receive any payment upon the principal of or premium,
if any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article Fourteen, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, in accordance with the priorities then existing among
holders of Senior Indebtedness for payment of the aggregate amounts remaining
unpaid on account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities shall fail
to file a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of the
Holders of Securities in the form required in any such proceeding (as are the
creditors in respect of General Obligations in the event Section 14.09 is
applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinate to the payment of the Securities, shall be received by
the Trustee or Holders of the Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be held in trust for the benefit of
and shall be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions
Page 50
hereof of cash, property or securities otherwise distributable to the Senior
Indebtedness shall, as between the Company, its creditors, other than the
holders of Senior Indebtedness and the Holders of the Securities, be deemed to
be a payment by the Company to or on account of the Securities. It is understood
that the provisions of this Article Fourteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of Senior Indebtedness (and, in the case of Section
14.09, the Holders of the Securities, on the one hand, and creditors in respect
of General Obligations) on the other hand. Nothing contained in this Article
Fourteen or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as between the Company, its creditors, other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute (and which, subject to the rights
under this Article Fourteen of the holders of the Senior Indebtedness and the
rights under Section 14.09 of creditors in respect of General Obligations, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms or to affect the relative rights of the Holders of
the Securities and creditors of the Company, other than the holders of the
Senior Indebtedness and creditors in respect of General Obligations, nor shall
anything herein or in the Securities prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture, subject to the rights, if any, under this Article
Fourteen of the holders of Senior Indebtedness and under Section 14.09 of
creditors in respect of General Obligations in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to in this Article
Fourteen, the Trustee, subject to the provisions of Section 8.01, and the
Holders of the Securities shall be entitled to rely upon any order or decree of
a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending or upon a certificate of
the liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders of the Securities for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company and the creditors in respect
of General Obligations, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Fourteen. In the absence of any such liquidating trustee, agent or
other person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) or a creditor in respect of General
Obligations as evidence that such Person is a holder of Senior Indebtedness (or
is such a trustee or representative) or a creditor in respect of General
Obligations, as the case may be. In the event that the Trustee determines, in
good faith, that further evidence is required with respect to the right of any
Person, as a holder of Senior Indebtedness or a creditor in respect of General
Obligations, to participate in any payment or distribution pursuant to this
Section or Section 14.09, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness or General Obligations held by such Person, as to the extent
to which such Person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the rights of such Person under
this Section or Section 14.09, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
The obligations of the Company in respect of the Securities shall rank on a
parity with the Existing Subordinated Indebtedness and any other obligations of
the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in respect of
General Obligations, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness or creditors in respect of General Obligations shall be read into
this Indenture against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or creditors in
respect of General Obligations, and shall not be liable to any such holders or
creditors if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holders of
Senior Indebtedness or creditors in respect of General Obligations shall be
entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default under
Senior Indebtedness. In the event and during the continuation of any default in
the payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Indebtedness shall have occurred and
be continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to accelerate the maturity thereof, then, unless
and until such default or event of default shall have been cured or waived or
shall have ceased to exist, no payment of principal of, or premium or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (i) impair, as between the Company
and Holders of Securities, the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 14.02, 14.03,
14.08 and 14.09, payments of principal of or premium, if any, or interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the
Securities, as and when the same shall become due and payable in accordance with
the terms of the Securities, (ii) affect the relative rights of the Holders of
the Securities and creditors of the Company other than the holders of the Senior
Indebtedness of the Company and the creditors in respect of General Obligations,
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default thereunder, subject
to the rights, if any, under Article Fourteen of the holders of Senior
Indebtedness and the creditors in
Page 51
respect of General Obligations in respect of cash, property or securities of the
Company received upon the exercise of such remedy, or (iv) prevent the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to the payment of or on account of the principal of or premium, if
any, or interest on the Securities or prevent the receipt by the Trustee or any
Paying Agent of such moneys, if, prior to the second Business Day prior to such
deposit, the Trustee or such Paying Agent did not have written notice of any
event prohibiting the making of such deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect Subordination. Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the provisions of this Article
or any other provisions of this Indenture, but subject to Section 14.04 hereof,
neither the Trustee nor any Paying Agent shall be charged with knowledge of the
existence of any Senior Indebtedness or General Obligations or of any event
which would prohibit the making of any payment of moneys to or by the Trustee or
such Paying Agent, unless and until the Trustee or such Paying Agent shall have
received written notice thereof from the Company or from the holder of any
Senior Indebtedness or from the representative of any such holder or from any
creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or General
Obligations. The Trustee shall be entitled to all of the rights set forth in
this Article in respect of any Senior Indebtedness or General Obligation at any
time held by it in its individual capacity to the same extent as any other
holder of such Senior Indebtedness or creditor in respect of such General
Obligation and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases. (i) Subject to the
provisions of this Section and to any provisions established or determined with
respect to Securities of any series pursuant to Section 3.01, the Securities
shall rank pari passu in right of payment with the Existing Subordinated
Indebtedness.
(ii) Upon the occurrence of any of the events specified in the first paragraph
of Section 14.02, the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document establishing or
governing the terms of any Existing Subordinated Indebtedness shall be given
effect on a pro rata basis to determine the amount of cash, property or
securities which may be payable or deliverable as between the holders of Senior
Indebtedness, on the one hand, and the Holders of the Securities and holders of
Existing Subordinated Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due on or in
respect of such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds shall first
be applied (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other indebtedness of the Company
that by its express terms provides for the payment over of amounts corresponding
to Excess Proceeds to creditors in respect of General Obligations) to pay or
provide for the payment of the General Obligations remaining unpaid, to the
extent necessary to pay all General Obligations in full, after giving effect to
any concurrent payment or distribution to or for creditors in respect of General
Obligations. Any Excess Proceeds remaining after payment (or provision for
payment) in full of all General Obligations shall be available for payment or
distribution in respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of subsection
(iii) of this Section, the Trustee or Holder of any Security shall, in the
circumstances contemplated by such subsection, have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before all General Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event, subject to any obligation
that the Trustee or such Holder may have pursuant to Section 14.02, such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the Holder of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that by its express terms provides for the payment
over of amounts corresponding to Excess Proceeds to creditors in respect of
General Obligations and is entitled to like rights of subrogation) to the rights
of the creditors
Page 52
in respect of General Obligations to receive payments or distributions of cash,
property or securities applicable to the General Obligations until the principal
of and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to creditors in respect of General
Obligations of any cash, property or securities to which Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Section, and no payments over pursuant to the provisions of this Section to
creditors in respect of General Obligations by Holders of Securities or the
Trustee, shall, as among the Company, its creditors (other than creditors in
respect of General Obligations) and the Holders of Securities be deemed to be a
payment or distribution by the Company to or on account of the Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this Section are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the creditors in respect of
General Obligations, on the other hand, after giving effect to the rights of the
holders of Senior Indebtedness, as provided in this Article. Nothing contained
in subsections (iii), (iv) and (v) of this Section is intended to or shall
affect the relative rights against the Company of the Holders of the Securities
and (a) the holders of Senior Indebtedness, (b) the holders of Existing
Subordinated Indebtedness or (c) other creditors of the Company other than
creditors in respect of General Obligations.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article. Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject to
repayment in whole or in part at the option of the Holder thereof on a Repayment
Date shall be repaid at the applicable Repayment Price together with interest
accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder desiring to exercise such
Holder's option for repayment shall, as conditions to such repayment, surrender
the Security to be repaid in whole or in part together with written notice of
the exercise of such option at any office or agency of the Company in a Place of
Payment, not less than 30 nor more than 45 days prior to the Repayment Date;
provided, however, that surrender of Bearer Securities together with written
notice of exercise of such option shall be made at an office or agency located
outside the United States except as otherwise provided in Section 5.02. Such
notice, which shall be irrevocable, shall specify the principal amount of such
Security to be repaid, which shall be equal to the minimum authorized
denomination for such Security or an integral multiple thereof, and shall
identify the Security to be repaid and, in the case of a partial repayment of
the Security, shall specify the denomination or denominations of the Security or
Securities of the same series to be issued to the Holder for the portion of the
principal of the Security surrendered which is not to be repaid. If any Bearer
Security surrendered for repayment shall not be accompanied by all unmatured
coupons and all matured coupons in default, such Bearer Security may be paid
after deducting from the Repayment Price an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Repayment Price, such Holder shall be
entitled to receive the amount so deducted without interest thereon; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States except as otherwise provided in
Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Registered Security so surrendered a new
Registered Security or Securities of the same series and tenor of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
Page 53
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the repayment of Securities shall relate, in the case of
any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The Company may
elect, with respect to Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity, at any time prior to
any Repayment Date to designate one or more Remarketing Entities to purchase, at
a price equal to the Repayment Price, Securities of such series from the Holders
thereof who give notice and surrender their Securities in accordance with
Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of exercise of
the option of repayment having been given and the Securities so to be repaid
having been surrendered as aforesaid, such Securities shall, unless purchased in
accordance with Section 15.04, on the Repayment Date become due and payable at
the price therein specified and from and after the Repayment Date such
Securities shall cease to bear interest and shall be paid on the Repayment Date,
and the coupons for such interest appertaining to Bearer Securities so to be
repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price, in which case the Company shall
continue to be obligated for the principal amount of such Securities and shall
be obligated to pay interest on such principal amount at the rate prescribed
therefor by such Securities from time to time until payment in full of such
principal amount.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called. If Securities of a
series are issuable in whole or in part as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may at any
time call a meeting of Holders of Securities of any series issuable in whole or
in part as Bearer Securities for any purpose specified in Section 16.01, to be
held at such time and at such place in the City of Columbus, Ohio, the Borough
of Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
such series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to vote at
any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 16.02(i), except that such notice need be given only once not less than
five days prior to the date
Page 54
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities
of any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to
Section 16.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairperson of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
Page 55
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
The Chase Manhattan Bank hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by________________________________
Attest:
________________________ [CORPORATE SEAL]
THE CHASE MANHATTAN BANK,
Trustee,
by__________________________________
Attest:
________________________ [CORPORATE SEAL]
STATE OF OHIO, ) ) ss.:
COUNTY OF FRANKLIN )
|
On this day of February, 1997, before me personally came to me known, , who,
being by me duly sworn, did depose and say that he resides at ; that he is
Treasurer of BANC ONE CORPORATION, one of the corporations described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Notary Public
[Notarial Seal]
STATE OF NEW YORK, )) ss.:
COUNTY OF NEW YORK,)
On this day of February, 1997 before me personally appeared , to me known, who,
being by me duly sworn, did depose and say that he resides at ; that he is a of
THE CHASE MANHATTAN BANK, one of the parties described in and which executed the
foregoing instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
Notary Public
[Notarial Seal]
Page 56
Exhibit 4.10(b)
FIRST SUPPLEMENTAL INDENTURE, dated as of October 2, 1998, between BANK
ONE CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware ("ONE"), having its principal offices at One First National
Plaza, Chicago, Illinois 60670 and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee (the "Trustee").
WHEREAS, BANC ONE CORPORATION ("BANC ONE") has heretofore executed and
delivered to the Trustee an Indenture, dated as of March 3, 1997 (the
"Indenture"), providing for the issuance from time to time of Subordinated Debt
Securities (herein and therein called the "Securities"); and
WHEREAS, effective as of October 2, 1998, BANC ONE merged with and into
ONE, a wholly owned subsidiary of BANC ONE; and
WHEREAS, Section 10.1 of the Indenture provides for the execution of an
indenture supplemental to the Indenture, in form satisfactory to the Trustee, to
evidence the succession of any successor corporation to BANC ONE under the
Indenture and the assumption of such successor corporation of the covenants of
BANC ONE in the Indenture and in the Securities pursuant to such Indenture; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of ONE, as the successor corporation to BANC ONE, under the
Indenture, in accordance with its terms, have been done.
NOW, THEREFORE, ONE and the Trustee hereby agree as follows:
1. From and after the date of this First Supplemental Indenture, ONE shall
for all purposes be deemed to be the "Company", as such term is defined in the
Indenture and the Securities, as if ONE was originally so named in the Indenture
and the Securities, and, as such, ONE hereby expressly assumes, from and after
the date of this First Supplemental Indenture, the due and punctual payment of
the principal
of, premium, if any, and interest on all of the Securities and the performance
of every covenant of the Indenture, as supplemented by this First Supplemental
Indenture, on the part of the ONE to be performed or observed.
2. All provisions of this First Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by this First Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
3. The Trustee accepts the trusts created by the Indenture, as
supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as supplemented by this
First Supplemental Indenture.
4. The recitals contained in this First Supplemental Indenture shall be
taken as statements of ONE, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
5. All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
6. This First Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
7. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
-2-
IN WITNESS WHEREOF, the parties hereto have caused the First Supplemental
Indenture to be duly executed, and their respective seals to be hereunto affixed
and attested, all as of the date first above written.
BANK ONE CORPORATION
ATTEST:
____________________________ By:
_____________________________
Title: _____________________ Title: Chief Financial
Officer
[Corporate Seal]
THE CHASE MANHATTAN
BANK,
as Trustee
ATTEST:
______________________________ By:
_____________________________
Title: _______________________ Title:
__________________________
|
[Corporate Seal]
-3-
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
|
On the 2nd day of October, 1998, before me personally came Robert A.
Rosholt, to me known, who, being duly sworn, did depose and say that he is the
Chief Financial Officer of BANK ONE CORPORATION, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Notary Public
My Commission Expires:__________
-4-
STATE OF )
) ss:
COUNTY OF )
|
On the ___________ day of ___________ before me personally came
__________________ , to me known, who, being duly sworn, did depose and say that
he is a _____________________of THE CHASE MANHATTAN BANK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
Notary Public
My Commission Expires:__________
-5-
Exhibit 4.11(a)
BANC ONE CORPORATION
AND
CITIBANK, N.A.
TRUSTEE
INDENTURE
DATED AS OF JULY 1, 1995
SUBORDINATED DEBT SECURITIES
1
TABLE OF CONTENTS 1/
Page
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ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.............................................. 1
"this Indenture" and certain other
terms.................................................. 1
"Act".................................................... 2
"Affiliate".............................................. 2
"Authenticating Agent"................................... 3
"Authorized Newspaper"................................... 3
"Authorized Officer"..................................... 3
"Bearer Security"........................................ 3
"Board of Directors"..................................... 3
"Board Resolution"....................................... 3
"Business Day"........................................... 3
"CEDEL; CEDEL S.A."...................................... 3
"Commission"............................................. 3
"Common Depositary"...................................... 4
"Company"................................................ 4
"Company Request" and "Company
Order"................................................. 4
"corporation"............................................ 4
"coupon"................................................. 4
"Default"................................................ 4
"Defaulted Interest"..................................... 4
"Depositary"............................................. 4
"Designated Currency".................................... 4
"Dollar"................................................. 5
"ECU".................................................... 5
"Euroclear".............................................. 5
"European Communities"................................... 5
"Event of Default"....................................... 5
"Exchange Act"........................................... 5
"Exchange Rate".......................................... 5
"Exchange Rate Officer's
Certificate"........................................... 5
"Existing Subordinated Indebtedness"..................... 6
"Foreign Currency"....................................... 6
"General Obligations".................................... 6
"Global Exchange Rate"................................... 6
|
1/ THIS TABLE OF CONTENTS IS NOT PART OF THE INDENTURE.
2
CONTENTS, P. 2
Page
----
"Global Security"........................................ 6
"Holder"................................................. 7
"interest"............................................... 7
"Interest Payment Date".................................. 7
"Maturity"............................................... 7
"Officers' Certificate".................................. 7
"Opinion of Counsel"..................................... 7
"Original Issue Discount Security"....................... 7
"Outstanding"............................................ 7
"Paying Agent"........................................... 8
"Person"................................................. 9
"Place of Payment"....................................... 9
"Predecessor Security"................................... 9
"Principal Corporate Trust Office"....................... 9
"Principal Paying Agent"................................. 9
"Redemption Date"........................................ 9
"Redemption Price"....................................... 9
"Registered Security".................................... 9
"Regular Record Date".................................... 9
"Remarketing Entity"..................................... 10
"Repayment Date"......................................... 10
"Repayment Price"........................................ 10
"Responsible Officer".................................... 10
"Security"; "Securities"................................. 10
"Security Register"...................................... 10
"Security Registrar"..................................... 10
"Senior Indebtedness".................................... 10
"Special Record Date".................................... 11
"Stated Maturity"........................................ 11
"Subsidiary of the Company" or
"Subsidiary"........................................... 11
"Trustee"................................................ 11
"Trust Indenture Act" or "TIA"........................... 12
"United States".......................................... 12
"United States Alien".................................... 12
"vice president"......................................... 12
SECTION 1.02. Compliance Certificates and Opinions..................... 12
SECTION 1.03. Form of Documents Delivered to
Trustee................................................ 13
SECTION 1.04. Acts of Holders.......................................... 14
SECTION 1.05. Notices, etc., to Trustee and
Company................................................ 17
SECTION 1.06. Notices to Holders; Waiver............................... 18
SECTION 1.07. Language of Notices, Etc................................. 19
SECTION 1.08. Conflict with Trust Indenture Act........................ 19
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3
CONTENTS, P. 3
Page
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SECTION 1.09. Effect of Headings and Table of
Contents............................................... 19
SECTION 1.10. Successors and Assigns................................... 19
SECTION 1.11. Separability Clause...................................... 20
SECTION 1.12. Benefits of Indenture.................................... 20
SECTION 1.13. Legal Holidays........................................... 20
SECTION 1.14. Governing Law............................................ 20
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally........................................... 20
SECTION 2.02. Form of Securities....................................... 21
SECTION 2.03. Form of Trustee's Certificate of
Authentication......................................... 22
SECTION 2.04. Global Securities........................................ 22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms.......................................... 23
SECTION 3.02. Denominations............................................ 26
SECTION 3.03. Execution, Authentication, Delivery
and Dating............................................. 26
SECTION 3.04. Temporary Securities..................................... 30
SECTION 3.05. Registration, Registration of
Transfer and Exchange.................................. 34
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities............................................. 39
SECTION 3.07. Payment of Interest; Interest
Rights Preserved....................................... 41
SECTION 3.08. Persons Deemed Owners.................................... 43
SECTION 3.09. Cancellation............................................. 44
SECTION 3.10. Computation of Interest.................................. 44
SECTION 3.11. Forms of Certification................................... 44
SECTION 3.12. Judgments................................................ 45
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4
CONTENTS, P. 4
Page
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ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article................................ 46
SECTION 4.02. Election to Redeem; Notice to
Trustee............................................... 46
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed............................. 46
SECTION 4.04. Notice of Redemption.................................... 47
SECTION 4.05. Deposit of Redemption Price............................. 48
SECTION 4.06. Securities Payable on Redemption
Date.................................................. 48
SECTION 4.07. Securities Redeemed in Part............................. 49
SECTION 4.08. Redemption Suspended During Event of
Default............................................... 50
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest.............................................. 50
SECTION 5.02. Maintenance of Office or Agency......................... 51
SECTION 5.03. Money for Security Payments to Be
Held in Trust......................................... 53
SECTION 5.04. Additional Amounts...................................... 55
SECTION 5.05. Statement as to Compliance.............................. 56
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises................................. 56
ARTICLE SIX
Holder's Lists and Reports
by Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names
and Addresses of Holders.............................. 57
SECTION 6.02. Preservation of Information;
Communications to Holders............................. 57
SECTION 6.03. Reports by Trustee...................................... 59
SECTION 6.04. Reports by Company...................................... 60
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5
CONTENTS, P. 5
Page
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ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default....................................... 61
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment......................................... 62
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee............................ 63
SECTION 7.04. Trustee May File Proofs of Claim........................ 64
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities.............................. 65
SECTION 7.06. Application of Money Collected.......................... 65
SECTION 7.07. Limitation on Suits..................................... 66
SECTION 7.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest.......................................... 68
SECTION 7.09. Restoration of Rights and Remedies...................... 68
SECTION 7.10. Rights and Remedies Cumulative.......................... 68
SECTION 7.11. Delay or Omission Not Waiver............................ 68
SECTION 7.12. Control by Noteholders.................................. 69
SECTION 7.13. Waiver of Past Defaults................................. 69
SECTION 7.14. Undertaking for Costs................................... 70
SECTION 7.15. Waiver of Stay or Extension Laws........................ 70
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities..................... 71
SECTION 8.02. Notice of Default....................................... 72
SECTION 8.03. Certain Rights of Trustee............................... 73
SECTION 8.04. Not Responsible for Recitals or
Issuance of Notes..................................... 74
SECTION 8.05. May Hold Securities..................................... 74
SECTION 8.06. Money Held in Trust..................................... 74
SECTION 8.07. Compensation and Reimbursement.......................... 75
SECTION 8.08. Disqualification; Conflicting
Interests............................................. 76
SECTION 8.09. Corporate Trustee Required;
Eligibility........................................... 76
SECTION 8.10. Resignation and Removal; Appointment
of Successor.......................................... 77
SECTION 8.11. Acceptance of Appointment by
Successor............................................. 79
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6
CONTENTS, P. 6
Page
----
SECTION 8.12. Merger, Conversion, Consolidation
or Succession to Business of
Trustee............................................... 80
SECTION 8.13. Preferential Collection of Claims
against Company....................................... 81
SECTION 8.14. Appointment of Authenticating Agents.................... 81
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders.................................... 83
SECTION 9.02. Supplemental Indentures With
Consent of Holders.................................... 85
SECTION 9.03. Execution of Supplemental Indentures.................... 87
SECTION 9.04. Effect of Supplemental Indentures....................... 87
SECTION 9.05. Conformity with Trust Indenture Act..................... 87
SECTION 9.06. Reference in Securities to
Supplemental Indentures............................... 87
SECTION 9.07. Subordination Unimpaired................................ 87
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only
on Certain Terms...................................... 88
SECTION 10.02. Successor Corporation Substituted....................... 88
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture............................................. 89
SECTION 11.02. Application of Trust Money.............................. 90
SECTION 11.03. Reinstatement........................................... 91
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CONTENTS, P. 7
Page
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ARTICLE TWELVE
Immunity of Incorporations, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability.................... 91
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article................................ 92
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.............................. 92
SECTION 13.03. Redemption of Securities for
Sinking Fund.......................................... 93
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement to Subordinate................................ 93
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization;
Subrogation of Securities............................. 93
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under
Senior Indebtedness................................... 98
SECTION 14.04. Payments on Securities Permitted........................ 98
SECTION 14.05. Authorization of Holders to
Trustee to Effect Subordination......................... 99
SECTION 14.06. Notice To Trustee....................................... 99
SECTION 14.07. Right of Trustee to Hold Senior
Indebtedness or General
Obligations........................................... 99
SECTION 14.08. Article Fourteen Not to Prevent
Defaults or Events of Default......................... 99
SECTION 14.09. Securities to Rank Pari Passu with
Existing Subordinated
Indebtedness; Payment of Proceeds
in Certain Cases...................................... 100
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8
CONTENTS, P. 8
Page
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ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article................................ 102
SECTION 15.02 Repayment of Securities................................. 102
SECTION 15.03. Exercise of Option; Notice.............................. 102
SECTION 15.04. Election of Repayment by
Remarketing Entities.................................. 104
SECTION 15.05. Securities Payable on the
Repayment Date........................................ 104
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be...................... 105
Called................................. ..............
SECTION 16.02. Call, Notice and Place of Meetings...................... 105
SECTION 16.03. Persons Entitled to Vote at
Meetings.............................................. 106
SECTION 16.04. Quorum; Action.......................................... 106
SECTION 16.05. Determination of Voting Rights;
Conduct and Adjournment of
Meetings.............................................. 107
SECTION 16.06. Counting Votes and Recording
Action of Meetings.................................... 108
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts............................................ 109
TESTIMONIUM.............................................................. 110
SIGNATURES AND SEALS..................................................... 110
ACKNOWLEDGMENTS.......................................................... 111
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. in
Connection with the Exchange of a
Portion of a Temporary Global Security
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9
CONTENTS, P. 9
Page
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EXHIBIT C. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
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10
CONTENTS, P. 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
Reflected in Indenture
-----------------------
Section
-----------------------
TIA
(S)310(a)(1)........................ 8.09
(a)(2)........................ 8.09
(a)(3)........................ Not Applicable
(a)(4)........................ Not Applicable
(a)(5)........................ 8.09
(b) ........................ 8.08
8.10
(c) ........................ Not Applicable
(S)311(a) ........................ 8.13
(b) ........................ 8.13
(S)312(a) ........................ 6.01
6.02(i)
(b) ........................ 6.02(ii)
(c) ........................ 6.02(iii)
(S)313(a) ........................ 6.03(i)
(b) ........................ 6.03(ii)
(c) ........................ 6.03(i), (ii) and (iii)
(d) ........................ 6.03(iii)
(S)314(a) ........................ 6.04
5.05
(b) ........................ Not Applicable
(c)(1)........................ 1.02
(c)(2)........................ 1.02
(c)(3)........................ Not Applicable
(d) ........................ Not Applicable
(e) ........................ 1.02
(f) ........................ Not Applicable
(S)315(a) ........................ 8.01(i)
........................ 8.01(iii)
(b) ........................ 8.02
(c) ........................ 8.01(ii)
(d) ........................ 8.01
(d)(1)........................ 8.01(i)
(d)(2)........................ 8.01(iii)(b)
(d)(3)........................ 8.01(iii)(c)
(e) ........................ 7.14
(S)316(a) ........................ 1.01
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11
CONTENTS, P. 11
Reflected in Indenture
-----------------------
Section
-----------------------
(S)316(a)(1)(A)...................... 7.02
7.12
(a)(1)(B)...................... 7.13
(a)(2) ...................... Not Applicable
(b) ...................... 7.08
(c) ...................... 1.04(viii)
(S)317(a)(1) ...................... 7.03
(a)(2) ...................... 7.04
(b) ...................... 5.03
(S)318(a) ...................... 1.08
(c) ...................... 1.08
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12
THIS INDENTURE is entered into as of July 1, 1995, between BANC ONE CORPORATION,
a corporation organized and existing under the laws of the State of Ohio
(hereinafter called the "Company"), having its principal executive office at 100
East Broad Street, Columbus, Ohio 43271, and CITIBANK, N.A., a national banking
association (hereinafter called the "Trustee"), having its principal corporate
trust office at 120 Wall Street, New York, New York 10043.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles", "Sections" and
other subdivisions are to the designated Articles, Sections and other
subdivisions of this Indenture. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein; and
(V) all accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except
as may be otherwise expressly provided herein or in one or more indentures
supplemental hereto, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the country
of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the Treasurer, the Secretary, the
Comptroller, any Assistant Comptroller, any Assistant Treasurer or any Assistant
Secretary of the Company.
13
"Bearer Security" means any Security in the form established pursuant to Section
2.02 which is payable to bearer, including, without limitation, unless the
context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which banking
institutions in the City of Columbus, Ohio and any Place of Payment for the
Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonymne or its successors.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if any time after the execution
and delivery of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first paragraph of this
instrument until any successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of a Global Security, the Person designated as Depositary by
the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to time
by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System.
"European Communities" means the European Economic Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in Section
3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
14
"Exchange Rate Officer's Certificate" with respect to any date for the payment
of principal of (and premium, if any) and interest on any series of Securities,
means a certificate setting forth the applicable Exchange Rate and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU, any other
composite currency or Foreign Currency, and signed by the Chairman of the Board,
a Vice Chairman of the Board, the President, any Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed
pursuant to Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.01, the Company's
7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74% Subordinated
Notes Due September 15, 2003, the Company's 9.875% Subordinated Notes Due March
1, 2009, and the Company's 10.00% Subordinated Notes Due August 15, 2010.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to any
series of Securities pursuant to Section 3.01, all obligations of the Company to
make payment on account of claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements, other than (i) obligations on account of Senior Indebtedness, (ii)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the Securities and (iii) obligations which by their terms
are expressly stated not to be superior in right of payment to the Securities or
to rank on a parity with the Securities; provided, however, that notwithstanding
the foregoing, in the event that any rule, guideline or interpretation
promulgated or issued by the Board of Governors of the Federal Reserve System
(or other competent regulatory agency or authority), as from time to time in
effect, establishes or specifies criteria for the inclusion in regulatory
capital of subordinated debt of a bank holding company requiring that such
subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors, as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4) of
the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of a series
of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose name
such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any series of Securities,
means the Stated Maturity of an installment of interest on such Securities.
"Maturity", when used with respect to any Security, means the date on which the
principal of such Security (or any installment of principal) becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board,
the President, a Vice Chairman of the Board, or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall contain the statements set forth in Section
1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of any series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
15
(ii) such Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been authenticated
and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the principal
of, premium, if any, or interest on any Securities or any coupons appertaining
thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest on the Securities of that series
are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means
the price specified in such Security at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security in the form established pursuant to
Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any Interest
Payment Date means the date, if any, specified in such Security as the "Regular
Record Date".
"Remarketing Entity", when used with respect to the Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any Person designated by the Company to purchase any such
Securities .
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any vice
president, any assistant vice president, any senior trust
16
officer, any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case may be,
authenticated and delivered under this indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and interest on
(i) all of the Company's indebtedness for money borrowed, other than the
Securities and the Existing Subordinated Indebtedness whether outstanding on the
date of execution of this Indenture or thereafter created, assumed or incurred,
except such indebtedness as is by its terms expressly stated to be not superior
in right of payment to the Securities or the Existing Subordinated Indebtedness
or to rank pari passu with the Securities or the Existing Subordinated
Indebtedness and (ii) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness for money borrowed" as used in the
foregoing sentence shall include, without limitation, any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means the date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any installment of
principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security, or such installment
of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having ordinary
voting power for the election of directors irrespective of whether or not stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly provided)
means the Trust Indenture Act of 1939, as in force at the date as of which this
instrument was executed, and, to the extent required by law, as amended.
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a nonresident alien individual, a non- resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non- resident alien
fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except as otherwise expressly provided
in this Indenture) shall include: (i) a statement that each individual signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the Security
Register.
(iv) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
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(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of any
action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(vii) For purposes of determining the principal amount of Outstanding Securities
of any series the Holders of which are required, requested or permitted to give
any request, demand, authorization, direction, notice, consent, waiver or take
any other Act under the Indenture, each Security denominated in a Foreign
Currency or composite currency shall be deemed to have the principal amount
determined by the Exchange Rate Agent by converting the principal amount of such
Security in the currency in which such Security is denominated into Dollars at
the Exchange Rate as of the date such Act is delivered to the Trustee and, where
it is hereby expressly required, to the Company, by Holders of the required
aggregate principal amount of the Outstanding Securities of such series (or, if
there is no such rate on such date, such rate on the date determined as
specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust Indenture
Act, set a record date for purposes of determining the identity of Holders of
Securities of any series entitled to give any request, demand, authorization,
direction, notice, consent, waiver or take any other Act, or to vote or consent
to any action by vote or consent authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such Series made by any Person
in respect of any such action, or in the case of any such vote, prior to such
vote, such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Securities furnished to the Trustee pursuant to Section 6.01 prior to such
solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part. (x) Without limiting the
generality of the foregoing, unless otherwise specified pursuant to Section 3.01
or pursuant to one or more indentures supplemental hereto, a Holder, including a
Depositary that is the Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is the Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Depositary's standing
instructions and customary practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Principal Corporate Trust Office, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class, postage prepaid, to the Company, to the attention of its
Treasurer, addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any Security
provides for notice to Holders of any event,
(1) such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first- class, postage
prepaid, to each Holder of Registered Securities affected by such event, at his
address as it appears in the Security
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Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and, if the
Securities of such series are then listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited and such stock exchange
shall so require, in London and, if the Securities of such series are then
listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are then listed on
any other stock exchange and such stock exchange shall so require, in any other
required city outside the United States, or, if not practicable, elsewhere in
Europe on a Business Day at least twice, the first such publication to be not
earlier than the earliest date, and not later than the latest date, prescribed
for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above. In case by reason of the suspension of
publication of any Authorized Newspaper or Authorized Newspapers or by reason of
any other cause it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, Etc. Any request, demand, authorization,
direction, notice, consent, or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of Sections 310 and 318, inclusive, of the TIA, such
imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders and, to the extent provided
in Article Fourteen hereof, the holders of Senior Indebtedness and creditors in
respect of General Obligations, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date of any Security or any date
on which any Defaulted Interest is proposed to be paid shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provisions of the
Securities or this Indenture) payment of the principal of, premium, if any, or
interest on any Securities need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Stated Maturity, Repayment
or Redemption Date or on the date on which Defaulted Interest is proposed to be
paid and, if such payment is made, no interest shall accrue on such payment for
the period from and after any such Interest Payment Date, Stated Maturity,
Repayment Date or Redemption Date or date on which Defaulted Interest is
proposed to be paid, as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of New York.
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ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Form Generally. All Securities and any related coupons shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
The Trustee's certificates of authentication shall be in substantially the form
set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution. Upon
or prior to the delivery of a Security or coupons in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(i) the Board Resolution by or pursuant to which such form of Security or
coupons has been approved, certified by the Secretary or an Assistant Secretary
of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and (iv) the
Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as permitted by
Section 3.04, the form thereof shall be established as provided in Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., AS TRUSTEE
by
AUTHORIZED OFFICER
SECTION 2.04. Global Securities. If Securities of a series are issuable in whole
or in part in global form, as specified as contemplated by Section 3.01, then,
notwithstanding clause (xii) of Section 3.01 and the provisions of Section 3.02,
such Global Security shall represent such of the outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges or increased to reflect the
issuance of additional uncertificated securities of such series. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.03 or Section 3.04.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(i) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial public
offering price of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series pursuant to this Article Three or Sections 4.07,
9.06 or 14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of the
Securities of the series is payable; (vi) the rate or rates at which the
Securities of the series shall bear interest, if any, or the method or methods
by which such rates may be determined, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall
be payable, the Regular Record Date for the interest payable on any Interest
Payment Date and the basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in temporary or
permanent global form, and in such case, the Depositary for such Global Security
or Securities, the terms and conditions, if any, upon which such Global Security
may be exchanged in whole or in part for definitive securities, and the manner
in which any interest payable on a temporary or permanent Global Security will
be paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02, the
Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest, if any, on Securities of the
series shall be payable;
(x) the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which Registered Securities of the series shall be
issuable; and, if other than $5,000 or any integral multiple thereof, the
denominations in which Bearer Securities of the series shall be issuable;
(xiii) the currency or currencies of denominations of the Securities of any
series, which may be in Dollars, any Foreign Currency or any composite currency,
including but not limited to the ECU, and, if any such currency of denomination
is a composite currency other than the ECU, the agency or organization, if any,
responsible for overseeing such composite currency;
(xiv) the currency or currencies in which payment of the principal of (and
premium, if any) and interest on the Securities will be made, the currency or
currencies, if any, in which payment of the principal of (and premium, if any)
or the interest on Registered Securities, at the election of each of the Holders
thereof, may also be payable and the periods within which and the terms and
conditions upon which such election is to be made and the Exchange Rate and the
Exchange Rate Agent;
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(xv) if the amount of payments of principal of (and premium, if any) or any
interest on Securities of the series may be determined with reference to an
index, the method or methods by which such amounts shall be determined ;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are to
be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if other
than the date of original issuance of the first Security of such series of like
tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be payable to
Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue Discount
Securities;
(xix) information with respect to book-entry procedures, if any; (xx) any
addition to or change in the Events of Default or covenants of the Company
pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any such
indenture supplement hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
SECTION 3.02. Denominations. The Securities of each series shall be issuable in
such form and denominations as shall be specified as contemplated by Section
3.01. In the absence of any specification with respect to the Securities of any
series, the Registered Securities of each series shall be issuable only as
Securities without coupons in denominations of $1,000 and any integral multiple
thereof and the Bearer Securities of each series, if any, shall be issuable with
coupons and in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or one of its Vice Presidents and by
its Secretary or one of its Assistant Secretaries. The signatures of any or all
of these officers on the Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of the Company's Chairman of the Board, its
President, a Vice Chairman of the Board or one of its Vice Presidents.
Securities and coupons bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the Securities of a
series are to be issued in whole or in part in the form of one or more Global
Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such Global Securities with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
23
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act,
and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 8.01) shall be fully protected in
relying upon, an Opinion of Counsel complying with Section 1.02 and stating
that,
(i) the form of such Securities and coupons, if any, has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been established in conformity with the provisions
of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general principles of
equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the issue
thereof will adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Notwithstanding the provisions of Section
3.01 and of this Section 3.03, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Board
Resolution or Officers' Certificate otherwise required pursuant to Section 3.01
or the Company Order and Opinion of Counsel otherwise required pursuant to this
Section 3.03 at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued and such
documents reasonably contemplate the issuance of all Securities of such series;
provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate or other certificates delivered
pursuant to Sections 1.02 and 3.01 shall be true and correct as if made on such
date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution and
that such Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication; and
unless otherwise specified as contemplated by Section 3.01, each Bearer Security
and any temporary Global Security referred to in Section 3.04 shall be dated as
of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancelation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order and
the receipt of the certifications and opinions required under Sections 3.01 and
3.03, the Trustee shall
24
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities. In the case of any series which may be issuable as Bearer
Securities, such temporary Securities may be in global form, representing such
of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each of which
shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured coupons
and all matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(ii) If temporary Securities of any series are issued in global form, any such
temporary Global Security shall, unless otherwise provided in such temporary
Global Security, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of the operator of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of the Company by any Person authorized to give
such instructions, the Trustee or any Authenticating Agent shall endorse such
temporary Global Security to reflect the initial principal amount, or an
increase in the principal amount, of Outstanding Securities represented thereby.
Until such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security shall at
any time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security, and subject
to the second proviso in the following paragraph, the interest of a beneficial
owner of Securities of a series in a temporary Global Security shall be
exchanged for definitive Securities including a definitive Global Bearer
Security) of such series and of like tenor following the Global Exchange Date
(as defined below) when the account holder instructs Euroclear or CEDEL S.A., as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form required
by Section 3.11(i), dated no earlier than 15 days prior to the Global Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security as the "Global Exchange Date" (the "Global Exchange Date"), the Company
shall deliver to the Trustee, or, if the Trustee appoints an Authenticating
Agent pursuant to Section 8.14, to any such Authenticating Agent, definitive
Securities in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. Unless otherwise specified
as contemplated by Section 3.01, such definitive Securities shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
may be specified by the Company, the Trustee or any such Authenticating Agent,
as may be appropriate. On or after the Global Exchange Date, such temporary
Global Security shall be surrendered by the Common Depositary to the Trustee or
any such Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee or any such Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary Global
Security, an equal aggregate principal amount of definitive Securities of the
same series, of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged, which, except as otherwise
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof; provided,
however, that unless otherwise specified in such temporary Global Security, upon
such presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary Global Security held
for its account then to be exchanged and a certificate dated the Global Exchange
Date or a subsequent date and signed by CEDEL S.A., as to the portion of such
25
temporary Global Security held for its account then to be exchanged, each in the
form required by Section 3.11(ii); and provided further that a definitive Bearer
Security (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the conditions set forth in Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global Security, such
temporary Global Security shall be endorsed by the Trustee or any such
Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal amount
shall be reduced for all purposes by the amount so exchanged. Until so exchanged
in full, such temporary Global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Global Exchange Date shall be payable, without interest,
to Euroclear and CEDEL S.A. on or after such Interest Payment Date upon delivery
by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent, as the case may
be, of a certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Security on
such Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest on Company Request
in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With respect
to Registered Securities, the Company shall keep or cause to be kept a register
(sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar", as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have the City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in the City of New
York.
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
The Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of any such payment from the Company;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency of a
Paying Agent, maintained pursuant to Section 5.02 for such purpose, located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or
26
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vi) shall
no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will deliver, Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in part for
Securities of such series of like tenor and terms and in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a new
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary
Global Security other than in accordance with the provisions of Sections 3.03
and 3.04.
Upon the exchange of Global Securities for Securities in definitive form, such
Global Securities shall be canceled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
27
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange
shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar shall
be required (i) to issue, register the transfer of or exchange any Securities of
any series during a period beginning at the opening of business 15 days before
the day of selection of Securities of such series to be redeemed and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however ,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to
this Section in exchange for any mutilated Security or in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security with a mutilated,
destroyed, lost or stolen coupon, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series and their coupons, if any, duly
issued hereunder.
28
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless otherwise
provided as contemplated by Section 3.01, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall unless otherwise provided in such Security be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise specified as contemplated by Section 3.01, in case a
Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency
referred to in Section 3.05) on any Regular Record Date and before the opening
of business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of his having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest to the
Persons in whose names any such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities with respect to which there exists such default may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of, or in exchange for, or in
lieu of, any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any coupon
appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or
after the Interest Payment Date of such coupon at an office or agency maintained
for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any coupons
appertaining thereto and any temporary Global Security shall pass by delivery.
29
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever whether or not such
Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating Agent or
the Security Registrar will have the responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interest of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest, and they shall be fully
protected in acting or refraining from acting on any such information provided
by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a series
of Securities, all Securities and coupons surrendered for payment, registration
of transfer, exchange, repayment or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered or surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All cancelled Securities or coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of each series
shall be computed as shall be specified as contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant to
Section 3.01:
(i) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by a Person entitled to receive a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A hereto, with only such changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form of
Exhibit B hereto, with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with payment of interest with respect to a temporary Global Security
prior to the related Global Exchange Date, such certification shall be provided
substantially in the form of Exhibit C hereto, with only such changes as shall
be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by a beneficial owner of a portion of a
temporary Global Security in connection with payment of interest with respect to
a temporary Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit D hereto,
with only such changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to Section 3.01, for
the Securities of any series that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 3.01, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest of the Securities of any series and any
appurtenant coupons in a Foreign Currency, composite currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 3.01 is of the
essence and agrees that judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and
interest on such Securities and any appurtenant coupons shall, notwithstanding
any payment in any other currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any premium
and cost of exchange) in the country of issue of the Designated Currency in the
case of Foreign Currency or Dollars or in the international banking community in
the case of a composite currency on the Business Day immediately following the
day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall;
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and (d) any obligation of the Company not discharged by such payment shall be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and, except as otherwise specified as contemplated by Section 3.01
for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the Company
to redeem any Securities redeemable at the option of the Company shall be
evidenced by an Officers' Certificate. In case of any redemption at the election
of the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and the
Security Registrar of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 4.03. Selection by Security Registrar of Securities To Be Redeemed. If
less than all the Securities of any series with the same terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal to
or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of Securities
of such series so selected for partial redemption shall be, in the case of
Registered Securities, equal to $1,000 or an integral multiple thereof or, in
the case of Bearer Securities, equal to $5,000 or an integral multiple thereof,
and the principal amount of any such Security which remains outstanding shall
not be less than the minimum authorized denomination for Securities of such
series.
The Security Registrar shall promptly notify the Company, the Trustee and the
Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given in the
manner provided in Section 1.06, not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the same
terms are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case of Bearer
Securities with all remaining coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price;
(vi) that the redemption is for a sinking fund, if such is the case; and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number (or any
other number used by a Depositary to identify such Securities), if any, of the
Securities to be redeemed.
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A notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, on Company Request, by the Trustee in the name
and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening of
business on any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be redeemed
only in part shall be surrendered at the office or agency of the Company in a
Place of Payment therefor (with, if the Company or the Security Registrar so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The Trustee shall
not redeem any Securities (unless all Securities then Outstanding are to be
redeemed) or commence the giving of any notice of redemption of Securities
during the continuance of any Event of Default known to the Trustee, except that
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall, subject to the provisions of Section 14.04,
redeem such Securities, provided funds are deposited with it for such purpose.
Subject to the rights of the holders of Senior Indebtedness and creditors in
respect of General Obligations, except as aforesaid, any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest. The Company covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest on the Securities
of such series in accordance with the terms of the Securities of such series,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before
32
Maturity shall be payable only outside the United States upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a series are
issuable only as Registered Securities, the Company will maintain in each Place
of Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If Securities of a series may be issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in London
or Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations, and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Principal Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 5.04) at the place specified for the purpose as contemplated by
Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any particular
series pursuant to the provisions of this Indenture, no payment of principal,
premium or interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States; provided, however, payment of principal of and any premium and
interest denominated in Dollars (including additional amounts payable in respect
thereof) on any Bearer Security may be made at an office or agency of, and
designated by, the Company located in the United States if (but only if) payment
of the full amount of such principal, premium, interest or additional amounts in
Dollars at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or similar restrictions and the Trustee receives
an Opinion of Counsel that such payment within the United States is legal.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, at the option of the Holder of any Bearer Security or
related coupon, payment may be made by check in the currency designated for such
payment pursuant to the terms of such Bearer Security presented or mailed to an
address outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section and
may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints Citibank,
N.A., as its Paying Agent in the City of New York with respect to all series of
Securities having a Place of Payment in the City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust. If the Company
shall at any time act as its own Paying Agent for any series of Securities, it
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities of such series and any appurtenant coupons,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, at or prior to the opening of business on each due date of
the principal of, premium, if any, or interest on any Securities of such series
and any appurtenant
33
coupons, deposit with a Paying Agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any series
of Securities to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, premium, if any,
or interest on Securities of such series and any appurtenant coupons in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal,
premium or interest on the Securities of such series or any appurtenant coupons;
and
(iii) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent, and, upon such payments by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust, and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide for the
payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate (provided, however, that one of the signatories of which
shall be the Company's principal executive officer, principal financial officer
or principal accounting officer) stating, as to each signer thereof, that:
34
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the Company has
fulfilled all its obligations and complied with all conditions and covenants
under this Indenture and under the terms of the Securities throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
condition or covenant specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if such an
event has occurred and is continuing, specifying such event known to him and the
nature and status thereof.
For purposes of this Section, compliance or default shall be determined without
regard to any period of grace or requirement of notice provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises. So long
as any of the Securities shall be Outstanding, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises to carry on its business; provided,
however, that nothing in this Section 5.06 shall (i) require the Company to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders, (ii) prevent any consolidation or merger of the
Company, or any conveyance or transfer of its property and assets substantially
as an entirety to any person, permitted by Article Ten, (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee (i) semiannually,
not more than 10 days after each March 1 and September 1, a list, in such form
as the Trustee may reasonably require, containing all the information in the
possession or control of the Company, any of its Paying Agents (other than the
Trustee) or the Security Registrar, if other than the Trustee, as to the names
and addresses of the Holders of Securities as of the preceding February 15 and
August 15, as the case may be, and (ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is requested to be furnished; provided, however,
that if and so long as the Trustee is the Security Registrar for Securities of a
series, no such list need be furnished with respect to such Series of
Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(a) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of Securities
of such series or all Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 6.02(i), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written
35
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders of Securities
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise, the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(iii) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
6.02(ii), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May l of each year
commencing with the year 1996, the Trustee shall mail to each Holder reports
concerning the Trustee and its action under the Indenture as may be required
pursuant to the Trust Indenture Act if and to the extent and in the manner
provided pursuant thereto.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to the extent
provided in Section 6.03(ii), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default", with respect to any series
of Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) the entry of a decree or order by a court having jurisdiction in the
premises granting relief in respect of the Company in an involuntary case under
the Federal Bankruptcy Code, adjudging the Company a bankrupt, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Federal Bankruptcy Code or
any other applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian,
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assignee, trustee, sequestrator (or other similar official) of the Company, or
of substantially all of its properties, or ordering the winding up or
liquidation of its affairs under any such law, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be adjudicated a bankrupt,
or the consent of the Company to the institution of bankruptcy proceedings
against it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or the
consent by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of its properties
under any such law; or
(iii) any other Event of Default provided with respect to Securities of that
series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to any series of Securities for which there are Securities
Outstanding occurs and is continuing, then, and in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of
such series (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) to be immediately due and payable, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences, and any Event of
Default giving rise to such declaration shall not be deemed to have occurred,
if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all Securities of such series;
(b) the principal of and premium, if any, on any Securities of such series which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor by the terms of the Securities
of such series;
(c) to the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates prescribed therefor by the terms
of the Securities of such series; and (d) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Security Registrar, any Paying Agent, and their
agents and counsel and all other amounts due the Trustee under Section 8.07.
(ii) all other Defaults with respect to Securities of that series, other than
the nonpayment of the principal of Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 7.13.
No such recession shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default is made in the payment of any installment of interest on any
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium, if any, on
any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
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If a Default with respect to any series of Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal, premium, if
any, and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the Holders allowed
in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same, and any receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or under the Securities of any
series, or coupons (if any) appertaining thereto, may be prosecuted and enforced
by the Trustee without the possession of any of the Securities of such series or
coupons appertaining thereto or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07, be for the ratable benefit
of the Holders of the Securities of such series and coupons appertaining thereto
in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the Trustee
with respect to a series of Securities pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee, and, in case
of the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
SECOND: To the payment of the amounts then due and unpaid upon the Securities of
such series and coupons for principal, premium, if any, and interest, in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on Securities of such series and coupons, if any, for principal,
premium, if any, and interest, respectively. The Holders of each series of
Securities denominated in ECU, any other composite currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to receive a
ratable portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of Securities and
matured but unpaid interest on such series of Securities in the currency in
which such series of Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Securities;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any series or
any related coupons shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to Securities of such series;
38
(ii) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Default in its own name as
Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in Section 7.01;
or
(b) default in the payment of the principal of or premium, if any, on any
Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security of such series as
and when the same shall become due and payable, and continuance of such default
for a period of 90 days; or
(d) failure on the part of the Company duly to observe or perform any of the
other covenants or agreements on its part in the Securities of such series or in
this Indenture and continuance of such failure for a period of 90 days after the
date on which written notice of such failure, requiring the Company to remedy
the same and stating that such notice is a "Notice of Default" hereunder, shall
have been given by registered mail to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate principal
amount of the Securities of such series at the time Outstanding; or
(e) any other Default provided with respect to Securities of that Series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any Holder
of a Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, lost, destroyed or stolen
Secur-ities or coupons in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder of any Security or coupon to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
39
SECTION 7.12. Control by Holders. The Holders of a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series; provided that
(i) such direction shall not be in conflict with any rule of law or with this
Indenture,
(ii) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder and its
consequences, except a default not theretofore cured
(i) in the payment of the principal of, premium, if any, or interest on any
Security of such series, or
(ii) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected. Upon any such waiver, such default
shall cease to exist, and any Default or Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of the Securities of such
series under this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to Securities of such
series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely
with respect to such series, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificate or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform as to form to the requirements of the Indenture.
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(ii) In case a Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(iii) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that
(a) this Subsection shall not be construed to limit the effect of Subsection (i)
of this Section;
(b) the Trustee shall not be liable for any error or judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; (c) the Trustee shall not be
liable with respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(iv) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence of any
default hereunder with respect to Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 6.03(ii) notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of, premium, if any, or interest on any Security of such series, or any related
coupons or in the payment of any sinking fund installment with respect to
Securities of such series the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided further that in the case of
any default of the character specified in Section 7.07(d) with respect to
Securities of such series, no such notice to Holders of Securities of such
series shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default", with respect to Securities of
any series, means any event which is, or after notice or lapse of time, or both,
would become, a Default or an Event of Default with respect to Securities of
such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in Section
8.01:
(i) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(vi) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, security or other
paper or document, but the Trustee, in its discretion, may make further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney and, if so requested to do so by any of the
Holders, at the sole cost and expense of the Holders;
41
(vii) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder; and
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article Eight shall also be afforded to
such Paying Agent, Authenticating Agent or Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating Agent, any
Paying Agent, the Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 8.08 and 8.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees
(i) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of, premium, if any, or interest on particular
Securities.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in 7.01, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of Section 310 of the
Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the Securities of any series by virtue of
being Trustee with respect to the Securities of any particular series of
Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee with respect to each series of Securities hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $5,000,000, subject to supervision or examination by Federal or
State authority; provided, however, that if Section 310( a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust
42
Indenture Act, this Section 8.09 shall be automatically deemed amended to permit
a corporation organized and doing business under the laws of any such
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
may serve as Trustee. If at any time the Trustee with respect to any series of
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at any time
by giving written notice thereof to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities at any
time by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to any
series of Securities after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of such series for at least
six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with respect to
any series of Securities and shall fail to resign after written request therefor
by the Company or by any Holder of Securities of such series, or
(c) the Trustee shall become incapable of acting with respect to any series of
Securities or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case, (1) the
Company by a Board Resolution may remove the Trustee with respect to such
series, or (2) subject to Section 7.14, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of acting with
respect to any series of Securities, or if a vacancy shall occur in the office
of Trustee with respect to any series of Securities for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 8.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been A bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first- class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Principal Corporate Trust
Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of the
appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any
43
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series.
(ii) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (b) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of Section 311
of the Trust Indenture Act regarding the collection of such claims against the
Company (or any such other obligor). A Trustee that has resigned or been removed
shall be subject to and comply with said Section 311 to the extent required
thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may appoint an
Authenticating Agent or Agents, which may include any Affiliate of the Company,
with respect to one or more series of Securities. Such Authenticating Agent or
Agents at the option of the Trustee shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authen-ticating
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in writing
by the Company and if such Authenticating Agent meets the minimum capitalization
requirements of this Section 8.14. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital
44
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., as Trustee,
by
AS AUTHENTICATING AGENT
by
AUTHORIZED OFFICER
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the
consent of any Holder of any Securities or coupons, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the Holders of
Securities of all or any series of Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Securities or coupons,
stating that such covenants are expressly being included solely for the benefit
of such series), or to surrender any right or power herein conferred upon the
Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under the Indenture;
provided that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect, or
(v) to add any additional Defaults or Events of Default with respect to all or
any series of the Securities (and, if such Default or Event of Default is
applicable to less than all series of Securities, specifying the series to which
such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of (or premium, if any)
or any interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be issued
in
45
exchange for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided any such
action shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this Indenture,
provided that any such addition, change or elimination (a) shall become
effective only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision or (b) shall not apply to any
Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 3.01, or
(ix) to add to or change any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms thereof;
or
(xi) to add to or change or eliminate any provision of this Indenture as shall
be necessary or desirable in accordance with any amendments to the Trust
Indenture Act, provided such action shall not adversely affect the interest of
Holders of Securities of any series or any appurtenant coupons in any material
respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the consent
of the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected by such supplemental indenture or
indentures (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of each such series and any related coupons under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of any
installment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest thereon,
or change the obligation of the Company to pay additional amounts pursuant to
Section 5.04 (except as contemplated by Section 10.01(i) and permitted by
Section 9.01), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or change the
method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or of certain defaults
hereunder and their consequences) provided for in this Indenture or reduce the
requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or agency in
the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by and
complies with this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
46
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the TIA
as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental indenture executed
pursuant to this Article shall directly or indirectly modify the provisions of
Article Fourteen in any manner which might alter the subordination of the
Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The Company
shall not consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
unless
(i) the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer the properties and assets
of the Company substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest (including all additional amounts, if any, payable
pursuant to Section 5.04) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(ii) immediately after giving effect to such transaction, no Default, and no
event which, after notice or lapse of time, or both, would become a Default,
shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, the
Company as the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and may be dissolved, wound up and liquidated at
any time thereafter.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for and rights
to receive payments thereon and any right to receive additional amounts, as
provided in Section 5.04), and the Trustee, on receipt of a Company Request and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and delivered (other than (1)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
4.07, (3) Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06, and (4) Securities
for whose payment money has theretofore been
47
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
5.03) have been delivered to the Trustee for cancelation; or
(b) all such Securities not theretofore delivered to the Trustee for cancelation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year, or (3) are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount (said amount to be immediately due and payable to the
Holders) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for cancelation,
for principal, premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the Maturity or
Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable hereunder
by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the provisions of the last
paragraph of Section 5.03, all money deposited with the Trustee pursuant to
Section 11.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons, if any, and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is unable to
apply any money in accordance with Section 11.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 11.01 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
coupon, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
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ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.01 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security Registrar an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (ii) the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 13.02, and (iii) that none of such Securities has
theretofore been so credited and stating the basis for such credit, and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30
days before each sinking fund payment date the Security Registrar shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 4.03 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 4.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
4.06 and 4.07.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement To Subordinate. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of a Security by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal and premium, if any, and interest on each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities. Upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a
court of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof (and, upon the
General Obligations and the creditors in respect thereof with respect to the
Securities and the Holders thereof) by a lawful plan of reorganization under
applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be entitled to receive
payment in full in accordance with the terms of such Senior Indebtedness of the
principal thereof, premium, if any, and the interest due thereon (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the Holders of the
Securities are entitled to receive any payment upon the principal of or premium,
if any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article Fourteen, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid by
the liquidating trustee or agent or other person making such
49
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Indebtedness
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, in accordance with the priorities then
existing among holders of Senior Indebtedness for payment of the aggregate
amounts remaining unpaid on account of the principal of and premium, if any, and
interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities shall fail
to file a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of the
Holders of Securities in the form required in any such proceeding (as are the
creditors in respect of General Obligations in the event Section 14.09 is
applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinate to the payment of the Securities, shall be received by
the Trustee or Holders of the Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be held in trust for the benefit of
and shall be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness (and, in the
case of Section 14.09, the Holders of the Securities, on the one hand, and
creditors in respect of General Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 14.09 of creditors in
respect of General Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or a creditor in respect of General Obligations as evidence that
such Person is a holder of Senior Indebtedness (or is such a trustee or
representative) or a creditor in respect of General Obligations, as the case may
be. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person, as a holder of
Senior Indebtedness or a creditor in respect of General Obligations, to
participate in any payment or distribution pursuant to this Section or Section
14.09, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or General
Obligations held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section or Section 14.09, and
if such evidence is not
50
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The obligations of the Company in respect of the Securities shall rank on a
parity with the Existing Subordinated Indebtedness and any other obligations of
the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in respect of
General Obligations, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness or creditors in respect of General Obligations shall be read into
this Indenture against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or creditors in
respect of General Obligations, and shall not be liable to any such holders or
creditors if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holders of
Senior Indebtedness or creditors in respect of General Obligations shall be
entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default under
Senior Indebtedness. In the event and during the continuation of any default in
the payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Indebtedness shall have occurred and
be continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to accelerate the maturity thereof, then, unless
and until such default or event of default shall have been cured or waived or
shall have ceased to exist, no payment of principal of, or premium or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (i) impair, as between the Company
and Holders of Securities, the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 14.02, 14.03,
14.08 and 14.09, payments of principal of or premium, if any, or interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the
Securities, as and when the same shall become due and payable in accordance with
the terms of the Securities, (ii) affect the relative rights of the Holders of
the Securities and creditors of the Company other than the holders of the Senior
Indebtedness of the Company and the creditors in respect of General Obligations,
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default thereunder, subject
to the rights, if any, under Article Fourteen of the holders of Senior
Indebtedness and the creditors in respect of General Obligations in respect of
cash, property or securities of the Company received upon the exercise of such
remedy, or (iv) prevent the application by the Trustee or any Paying Agent of
any moneys deposited with it hereunder to the payment of or on account of the
principal of or premium, if any, or interest on the Securities or prevent the
receipt by the Trustee or any Paying Agent of such moneys, if, prior to the
second Business Day prior to such deposit, the Trustee or such Paying Agent did
not have written notice of any event prohibiting the making of such deposit by
the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect Subordination. Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the provisions of this Article
or any other provisions of this Indenture, neither the Trustee nor any Paying
Agent shall be charged with knowledge of the existence of any Senior
Indebtedness or General Obligations or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received written
notice thereof from the Company or from the holder of any Senior Indebtedness or
from the representative of any such holder or from any creditor in respect of
General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or General
Obligations. The Trustee shall be entitled to all of the rights set forth in
this Article in respect of any Senior Indebtedness or General Obligation at any
time held by it in its individual capacity to the same extent as any other
holder of such Senior Indebtedness or creditor in respect of such General
Obligation and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder or creditor.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing SUBORDINATED
INDEBTEDNESS; PAYMENT OF PROCEEDS IN CERTAIN CASES. (i) SUBJECT TO the
provisions of this Section and to any provisions established or determined with
respect to Securities of any series pursuant to Section 3.01, the Securities
shall rank pari passu in right of payment with the Existing Subordinated
Indebtedness.
(ii) Upon the occurrence of any of the events specified in the first paragraph
of Section 14.02, the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document establishing or
governing the terms of any Existing
51
Subordinated Indebtedness shall be given effect on a pro rata basis to determine
the amount of cash, property or securities which may be payable or deliverable
as between the holders of Senior Indebtedness, on the one hand, and the Holders
of the Securities and holders of Existing Subordinated Indebtedness, on the
other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due on or in
respect of such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds shall first
be applied (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other indebtedness of the Company
that by its express terms provides for the payment over of amounts corresponding
to Excess Proceeds to creditors in respect of General Obligations) to pay or
provide for the payment of the General Obligations remaining unpaid, to the
extent necessary to pay all General Obligations in full, after giving effect to
any concurrent payment or distribution to or for creditors in respect of General
Obligations. Any Excess Proceeds remaining after payment (or provision for
payment) in full of all General Obligations shall be available for payment or
distribution in respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of subsection
(iii) of this Section, the Trustee or Holder of any Security shall, in the
circumstances contemplated by such subsection, have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before all General Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event, subject to any obligation
that the Trustee or such Holder may have pursuant to Section 14.02, such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the Holder of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that by its express terms provides for the payment
over of amounts corresponding to Excess Proceeds to creditors in respect of
General Obligations and is entitled to like rights of subrogation) to the rights
of the creditors in respect of General Obligations to receive payments or
distributions of cash, property or securities applicable to the General
Obligations until the principal of and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to
creditors in respect of General Obligations of any cash, property or securities
to which Holders of the Securities or the Trustee would be entitled except for
the provisions of this Section, and no payments over pursuant to the provisions
of this Section to creditors in respect of General Obligations by Holders of
Securities or the Trustee, shall, as among the Company, its creditors (other
than creditors in respect of General Obligations) and the Holders of Securities
be deemed to be a payment or distribution by the Company to or on account of the
Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this Section are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the creditors in respect of
General Obligations, on the other hand, after giving effect to the rights of the
holders of Senior Indebtedness, as provided in this Article. Nothing contained
in subsections (iii), (iv) and (v) of this Section is intended to or shall
affect the relative rights against the Company of the Holders of the Securities
and (a) the holders of Senior Indebtedness (b) the holders of Existing
Subordinated Indebtedness or (c) other creditors of the Company other than
creditors in respect of General Obligations.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article. Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject to
repayment in whole or in part at the option of the Holder thereof on a Repayment
Date shall be repaid at the applicable Repayment Price together with interest
accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder desiring to exercise such
Holder's option for repayment shall, as conditions to such repayment, surrender
the Security to be repaid in whole or in part together with written notice of
the exercise of such option at any office or agency of the Company in a Place of
Payment, not less than 30 nor more than 45 days prior to the Repayment Date;
provided, however, that surrender of Bearer Securities together with written
notice of exercise of such option shall be made at an office or agency located
outside the United States except as otherwise provided in Section 5.02. Such
notice, which shall be irrevocable, shall specify the principal amount of such
Security to be repaid, which shall be equal to the minimum authorized
52
denomination for such Security or an integral multiple thereof, and shall
identify the Security to be repaid and, in the case of a partial repayment of
the Security, shall specify the denomination or denominations of the Security or
Securities of the same series to be issued to the Holder for the portion of the
principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by all
unmatured coupons and all matured coupons in default, such Bearer Security may
be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Registered Security so surrendered a new
Registered Security or Securities of the same series and tender of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the repayment of Securities shall relate, in the case of
any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The Company may
elect, with respect to Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity, at any time prior to
any Repayment Date to designate one or more Remarketing Entities to purchase, at
a price equal to the Repayment Price, Securities of such series from the Holders
thereof who give notice and surrender their Debt Securities in accordance with
Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of exercise of
the option of repayment having been given and the Securities so to be repaid
having been surrendered as aforesaid, such Securities shall, unless purchased in
accordance with Section 15.04, on the Repayment Date become due and payable at
the price therein specified and from and after the Repayment Date such
Securities shall cease to bear interest and shall be paid on the Repayment Date,
and the coupons for such interest appertaining to Bearer Securities so to be
repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price, in which case the Company shall
continue to be obligated for the principal amount of such Securities and shall
be obligated to pay interest on such principal amount at the rate prescribed
therefor by such Securities from time to time until payment in full of such
principal amount.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called. If Securities of a
series are issuable in whole or in part as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may at any
time call a meeting of Holders of Securities of any series issuable as Bearer
Securities for any purpose specified in Section 16.01, to be held at such time
and at such place in the City of Columbus, Ohio, the Borough of Manhattan, The
City of New York, or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 1.06, not less
than 21 nor more than 180 days
53
prior to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to vote at
any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 16.02(i), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum. Except as limited by
the provisos to Section 9.02, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid may be adopted
only by the affirmative vote of the Holders of a majority in principal amount of
the Outstanding Securities of the series; provided, however, that, except as
limited by the provisos to Section 9.02, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be given by the
Holders of a greater percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of such greater percentage in principal amount of the
Outstanding Securities of that series; and provided further that, except as
limited by the provisos to Section 9.02, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities
of any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent
54
chairperson and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to
Section 16.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairperson of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Citibank, N.A. hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by
Attest:
________________________ [CORPORATE SEAL]
Assistant Secretary
CITIBANK, N.A. as Trustee,
by _______________________
Attest:
________________________
Assistant Secretary
55
|
) ss.:
COUNTY OF [ ] )
On this day of 1995, before me personally came to me known, , who, being by me
duly sworn, did depose and say that he resides at []; THAT HE IS [ ] OF BANC ONE
CORPORATION, ONE OF THE corporations described in and which executed the
foregoing instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
Notary Public
[Notarial Seal]
STATE OF NEW YORK, ) ) ss.:
COUNTY OF NEW YORK,)
On this day of 1995, before me personally appeared , to me known, who, being by
me duly sworn, did depose and say that he resides at ; that he is a of CITIBANK,
N.A., one of the parties described in and which executed the foregoing
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
Notary Public
[Notarial Seal]
56
Exhibit 4.12(a)
FIRST CHICAGO NBD CORPORATION
AND
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
TRUSTEE
Indenture
Dated as of December 1, 1995
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS*
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
PAGE
----
SECTION 1.01. Definitions.................................................. 11
"this Indenture" and certain other terms..................... 11
"Act"........................................................ 11
"Affiliate".................................................. 12
"Authenticating Agent"....................................... 12
"Authorized Newspaper"....................................... 12
"Authorized Officer"......................................... 12
"Bank"....................................................... 12
"Bearer Security"............................................ 12
"Board of Directors"......................................... 12
"Board Resolution"........................................... 12
"Business Day"............................................... 12
"CEDEL; CEDEL S.A.".......................................... 12
"Commission"................................................. 12
"Common Stock"............................................... 12
"Common Depositary".......................................... 12
"Company".................................................... 12
"Company Request" and "Company Order"........................ 13
"corporation"................................................ 13
"Co-Security Register"....................................... 13
"coupon"..................................................... 13
"Default".................................................... 13
"Defaulted Interest"......................................... 13
"Depositary"................................................. 13
"Designated Currency"........................................ 13
"Dollar"..................................................... 13
"ECU"........................................................ 13
"Euroclear".................................................. 13
"European Communities"....................................... 13
"Event of Default"........................................... 13
"Exchange Rate".............................................. 13
"Exchange Rate Agent"........................................ 13
"Exchange Rate Officer's Certificate"........................ 13
"Existing Subordinated Indebtedness"......................... 13
"Foreign Currency"........................................... 14
"General Obligations"........................................ 14
"Global Exchange Date"....................................... 14
"Global Security"............................................ 14
"Holder"..................................................... 14
"interest"................................................... 14
"Interest Payment Date"...................................... 14
"Maturity"................................................... 14
"Officers' Certificate"...................................... 14
"Opinion of Counsel"......................................... 15
|
*This table of Contents is not part of the Indenture.
Page 2
PAGE
----
"Original Issue Discount Security"........................... 15
"Outstanding"................................................ 15
"Paying Agent"............................................... 15
"Person"..................................................... 15
"Place of Payment"........................................... 15
"Predecessor Security"....................................... 15
"Principal Corporate Trust Office"........................... 15
"Principal Paying Agent"..................................... 16
"Redemption Date"............................................ 16
"Redemption Price"........................................... 16
"Registered Security"........................................ 16
"Regular Record Date"........................................ 16
"Remarketing Entity"......................................... 16
"Repayment Date"............................................. 16
"Repayment Price"............................................ 16
"Responsible Officer"........................................ 16
"Security" or "Securities"................................... 16
"Security Register".......................................... 16
"Security Registrar"......................................... 16
"Senior Indebtedness"........................................ 16
"Special Record Date"........................................ 16
"Stated Maturity"............................................ 17
"Subsidiary of the Company" or "Subsidiary".................. 17
"Trustee".................................................... 17
"Trust Indenture Act" or "TIA"............................... 17
"United States".............................................. 17
"United States Alien"........................................ 17
"Vice President"............................................. 17
SECTION 1.02. Compliance Certificates and Opinions......................... 17
SECTION 1.03. Form of Documents Delivered to Trustee....................... 18
SECTION 1.04. Acts of Holders.............................................. 18
SECTION 1.05. Notices, etc., to Trustee and Company........................ 20
SECTION 1.06. Notices to Holders; Waiver................................... 20
SECTION 1.07. Language of Notices, Etc..................................... 21
SECTION 1.08. Conflict with Trust Indenture Act............................ 21
SECTION 1.09. Effect of Headings and Table of Contents..................... 21
SECTION 1.10. Successors and Assigns....................................... 21
SECTION 1.11. Separability Clause.......................................... 21
SECTION 1.12. Benefits of Indenture........................................ 21
SECTION 1.13. Legal Holidays............................................... 21
SECTION 1.14. Governing Law................................................ 22
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.............................................. 22
SECTION 2.02. Form of Securities........................................... 22
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Page 3
PAGE
----
SECTION 2.03. Form of Trustee's Certificate of Authentication.............. 23
SECTION 2.04. Global Securities............................................ 23
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.............................................. 23
SECTION 3.02. Denominations................................................ 25
SECTION 3.03. Execution, Authentication, Delivery and Dating............... 25
SECTION 3.04. Temporary Securities......................................... 27
SECTION 3.05. Registration, Registration of Transfer and Exchange.......... 29
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities............. 32
SECTION 3.07. Payment of Interest; Interest Rights Preserved............... 32
SECTION 3.08. Persons Deemed Owners........................................ 34
SECTION 3.09. Cancellation................................................. 34
SECTION 3.10. Computation of Interest...................................... 34
SECTION 3.11. Forms of Certification....................................... 34
SECTION 3.12. Judgments.................................................... 35
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article..................................... 35
SECTION 4.02. Election to Redeem; Notice to Trustee........................ 35
SECTION 4.03. Selection by Security Registrar of Securities
to be Redeemed.............................................. 36
SECTION 4.04. Notice of Redemption......................................... 36
SECTION 4.05. Deposit of Redemption Price.................................. 37
SECTION 4.06. Securities Payable on Redemption Date........................ 37
SECTION 4.07. Securities Redeemed in Part.................................. 37
SECTION 4.08. Redemption Suspended During Event of Default................. 37
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest................... 38
SECTION 5.02. Maintenance of Office or Agency.............................. 38
SECTION 5.03. Money for Security Payments to Be Held in Trust.............. 39
SECTION 5.04. Additional Amounts........................................... 40
SECTION 5.05. Statement as to Compliance................................... 41
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.... 41
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Page 4
ARTICLE SIX
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
PAGE
----
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.... 41
SECTION 6.02. Preservation of Information; Communications to Holders....... 42
SECTION 6.03. Reports by Trustee........................................... 42
SECTION 6.04. Reports by Company........................................... 43
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default............................................ 43
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment........... 44
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................... 44
SECTION 7.04. Trustee May File Proofs of Claim............................. 45
SECTION 7.05. Trustee May Enforce Claims Without Possession
of Securities............................................... 46
SECTION 7.06. Application of Money Collected............................... 46
SECTION 7.07. Limitation on Suits.......................................... 46
SECTION 7.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest............................. 47
SECTION 7.09. Restoration of Rights and Remedies........................... 47
SECTION 7.10. Rights and Remedies Cumulative............................... 47
SECTION 7.11. Delay or Omission Not Waiver................................. 47
SECTION 7.12. Control by Noteholders....................................... 48
SECTION 7.13. Waiver of Past Defaults...................................... 48
SECTION 7.14. Undertaking for Costs........................................ 48
SECTION 7.15. Waiver of Stay or Extension Laws............................. 48
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.......................... 49
SECTION 8.02. Notice of Default............................................ 49
SECTION 8.03. Certain Rights of Trustee.................................... 50
SECTION 8.04. Not Responsible for Recitals or Issuance of Notes............ 50
SECTION 8.05. May Hold Securities.......................................... 51
SECTION 8.06. Money Held in Trust.......................................... 51
SECTION 8.07. Compensation and Reimbursement............................... 51
SECTION 8.08. Disqualification; Conflicting Interests...................... 51
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Page 5
PAGE
----
SECTION 8.09. Corporate Trustee Required; Eligibility...................... 52
SECTION 8.10. Resignation and Removal; Appointment of Successor............ 52
SECTION 8.11. Acceptance of Appointment by Successor....................... 53
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee........................... 54
SECTION 8.13. Preferential Collection of Claims against Company............ 54
SECTION 8.14. Appointment of Authenticating Agents......................... 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders........... 56
SECTION 9.02. Supplemental Indentures With Consent of Holders.............. 56
SECTION 9.03. Execution of Supplemental Indentures......................... 57
SECTION 9.04. Effect of Supplemental Indentures............................ 57
SECTION 9.05. Conformity with Trust Indenture Act.......................... 57
SECTION 9.06. Reference in Securities to Supplemental Indentures........... 58
SECTION 9.07. Subordination Unimpaired..................................... 58
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms......... 58
SECTION 10.02. Successor Corporation Substituted............................ 58
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture...................... 59
SECTION 11.02. Application of Trust Money................................... 59
SECTION 11.03. Reinstatement................................................ 60
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.......................... 60
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article..................................... 60
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities.................................................. 61
SECTION 13.03. Redemption of Securities for Sinking Fund.................... 61
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Page 6
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
PAGE
----
SECTION 14.01. Agreement to Subordinate..................................... 61
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities................... 61
SECTION 14.03. Payments on Securities Prohibited During Event
of Default under Senior Indebtedness........................ 63
SECTION 14.04. Payments on Securities Permitted............................. 64
SECTION 14.05. Authorization of Holders to Trustee to Effect
Subordination............................................... 64
SECTION 14.06. Notice to Trustee............................................ 64
SECTION 14.07. Right of Trustee to Hold Senior Indebtedness
or General Obligations...................................... 64
SECTION 14.08. Article Fourteen Not to Prevent Defaults or 64
Events of Default...........................................
SECTION 14.09. Securities to Rank Pari Passu with Existing
Subordinated Indebtedness; Payment of
Proceeds in Certain Cases................................... 64
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article..................................... 66
SECTION 15.02. Repayment of Securities...................................... 66
SECTION 15.03. Exercise of Option; Notice................................... 66
SECTION 15.04. Election of Repayment by Remarketing Entities................ 67
SECTION 15.05. Securities Payable on the Repayment Date..................... 67
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called.................... 67
SECTION 16.02. Call, Notice and Place of Meetings........................... 67
SECTION 16.03. Persons Entitled to Vote at Meetings......................... 68
SECTION 16.04. Quorum; Action............................................... 68
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings..................................... 69
SECTION 16.06. Counting Votes and Recording Action of
Meetings.................................................... 69
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Page 7
ARTICLE SEVENTEEN
MISCELLANEOUS
PAGE
----
SECTION 17.01. Counterparts................................................... 65
TESTIMONIUM................................................................... 65
SIGNATURES AND SEALS.......................................................... 65
ACKNOWLEDGMENTS............................................................... 65
|
EXHIBIT A. Form of Certificate to be Given by Person En-
titled to Receive Bearer Security
EXHIBIT B. Form of Certificate to be Given by Euroclear
and CEDEL S.A. in Connection with the Exchange
of a Portion of a Temporary Global Security
EXHIBIT C. Form of Certificate to be Given by Euroclear
and CEDEL S.A. to Obtain Interest Prior to an
Exchange Date
EXHIBIT D. Form of Certificate to be Given by Beneficial
Owners to Obtain Interest Prior to an Exchange
Date
Page 8
|
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
|
REFLECTED IN INDENTURE
----------------------
SECTION
-------
TIA
(S) 310(a)(1) ......................................... 8.09
(a)(2) .............................................. 8.09
(a)(3) .............................................. Not Applicable
(a)(4) .............................................. Not Applicable
(a)(5) .............................................. 8.09
(b) ................................................. 8.08
8.10
(c) ................................................. Not Applicable
(S) 311(a) ........................................... 8.13
(b) ................................................. 8.13
(S) 312(a) ............................................ 6.01
6.02(i)
(b) ................................................. 6.02(ii)
(c) ................................................. 6.02(iii)
(S) 313(a) ........................................... 6.03(i)
(b) ................................................. 6.03(ii)
(c) ................................................. 6.03(i), (ii) and (iii)
(d) ................................................. 6.03(iii)
(S) 314(a) ............................................ 6.04
5.05
(b) ................................................. Not Applicable
(c)(1) .............................................. 1.02
(c)(2) .............................................. 1.02
(c)(3) .............................................. Not Applicable
(d) ................................................. Not Applicable
(e) ................................................. 1.02
(f) ................................................. Not Applicable
(S) 315(a) ........................................... 8.01(i)
8.01(iii)
(b) ................................................. 8.02
(c) ................................................. 8.01(ii)
(d) ................................................. 8.01
(d)(1) .............................................. 8.01(i)
(d)(2) .............................................. 8.01(iii)(b)
(d)(3) .............................................. 8.01(iii)(c)
(e) ................................................. 7.14
(S) 316(a) ........................................... 1.01
(S) 316(a)(1)(A) ...................................... 7.02
7.12
(a)(1)(B) ........................................... 7.13
(a)(2) .............................................. Not Applicable
(b) ................................................. 7.08
(c) ................................................. 1.04(viii)
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Page 9
REFLECTED IN INDENTURE
----------------------
SECTION
-------
(S) 317(a)(1) .......................................... 7.03
(a)(2) ............................................... 7.04
(b) .................................................. 5.03
(S) 318(a) ............................................. 1.08
(c) .................................................. 1.08
|
Page 10
THIS INDENTURE is entered into as of December 1, 1995, between FIRST
CHICAGO NBD CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (hereinafter called the "Company"), having its principal
executive office at One First National Plaza, Chicago, Illinois 60670, and THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
trustee (hereinafter called the "Trustee"), having its principal corporate trust
office at 4 Chase MetroTech Center, New York, New York 11245, Attention:
Institutional Trust Group.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or
in one or more indentures supplemental hereto, the term "generally
accepted accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, the Chief Financial Officer, any Vice President, the
Treasurer, the Secretary, the Comptroller, any Assistant Comptroller, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Bank" means The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States of
America.
"Bearer Security" means any Security in the form established pursuant to
Section 2.02 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in the City of Chicago and any Place of Payment for the
Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if any
time after the execution and delivery of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company and includes the common
stock, $1 par value per share, of the Company as the same exists at the date of
this Indenture or as such stock may be constituted from time to time.
"Common Depositary" has the meaning specified in Section 3.04(ii).
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until any successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
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"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President, a Vice Chairman of the Board, its Chief Financial Officer or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Comptroller,
an Assistant Comptroller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"Co-Security Registrar" has the meaning specified in Section 3.05.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Seven.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company or the Exchange Rate Agent appointed pursuant to Section 3.01 and
delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined
with respect to any series of Securities pursuant to Section 3.01, the Company's
Floating Rate Subordinated Capital Notes Due December 1996, the Company's 9 7/8%
Subordinated Notes Due July 1999, the Company's 9% Subordinated Notes Due June
15, 1999, the Company's 9 7/8% Subordinated Notes Due August 15, 2000, the
Company's 11 1/4%
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Subordinated Notes Due February 20, 2001, the Company's 10 1/4% Subordinated
Notes Due May 1, 2001, the Company's 9 1/4% Subordinated Notes Due November 15,
2001, the Company's 8 7/8% Subordinated Notes Due March 15, 2002, the Company's
8 1/4% Subordinated Notes Due June 15, 2002, the Company's 9 1/5% Subordinated
Notes Due December 17, 2001, the Company's 7 5/8% Subordinated Notes Due January
15, 2003, the Company's 6 7/8% Subordinated Notes Due June 15, 2003, the
Company's Floating Rate Subordinated Notes Due July 28, 2003, the Company's 6
3/8% Subordinated Notes Due January 30, 2009, the Company's 7.125% Subordinated
Notes Due 2007, the Company's 7 1/4% Subordinated Debentures Due 2004, the
Company's 8.10% Subordinated Notes Due 2002, the Company's 7.40% Subordinated
Debentures due May 10, 2023 and the Company's Floating Rate Subordinated Notes
Due 2005.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to
any series of Securities pursuant to Section 3.01, all obligations of the
Company to make payment on account of claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than (i) obligations on account of Senior
Indebtedness, (ii) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Securities and (iii) obligations
which by their terms are expressly stated not to be superior in right of payment
to the Securities or to rank on a parity with the Securities; provided, however,
that notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or other competent regulatory agency or authority), as from time
to time in effect, establishes or specifies criteria for the inclusion in
regulatory capital of subordinated debt of a bank holding company requiring that
such subordinated debt be subordinated to obligations to creditors in addition
to those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors, as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4) of
the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04 (iv).
"Global Security" means a Security issued to evidence all or a part of a
series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any instalment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice Chairman of the Board, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate shall
contain the statements set forth in Section 1.02, if applicable.
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"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at the address set forth in the first paragraph of this
instrument.
Page 15
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in such Security at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant
to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, assistant vice president or corporate trust officer of the
Corporate Trust Department of the Trustee and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
the Securities and the Existing Subordinated Indebtedness whether outstanding on
the date of execution of the Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness and (ii) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness for money borrowed" as used in the
foregoing sentence shall include, without limitation, any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means the
date fixed by the Trustee pursuant to Section 3.07.
Page 16
"Stated Maturity", when used with respect to any Security, or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security, or such
instalment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the Officers' Certificate
required by Section 5.05) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
Page 17
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(i) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders or
Holders of any series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If Securities of a series are issuable in
whole or in part as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may, alternatively, be embodied in and evidenced by
the record of Holders of Securities voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of Securities
duly called and held in accordance with the provisions of Article Sixteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Security shall be sufficient for any purpose of this Indenture and
(subject to Section 8.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
Page 18
(iv) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 3.01 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Page 19
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Principal Corporate Trust Office, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of any
event,
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed,
first-class, postage prepaid, to each Holder of Registered Securities
affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, or, if not practicable, elsewhere in Europe on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
Page 20
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 1.08. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of Sections
310 and 318, inclusive, of the TIA, such imposed duties or incorporated
provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All convenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Holders and, to the extent provided in Article Fourteen hereof,
the holders of Senior Indebtedness and creditors in respect of General
Obligations, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity, Repayment
Date or Redemption Date of any Security or any date on which any Defaulted
Interest is proposed to be paid shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provisions of the Securities or this
Indenture) payment of the principal of, premium, if any, or interest on any
Securities need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the
Page 21
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or on
the date on which Defaulted Interest is proposed to be paid, and, if such
payment is made, no interest shall accrue on such payment for the period from
and after any such Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date, as the case may be.
SECTION 1.14. Governing Law.
This Indenture and the Securities shall be construed in accordance with
and governed by the laws of the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
All Securities and any related coupons shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities.
Each Security and coupon shall be in one of the forms approved from time
to time by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security or coupons in any such form to the Trustee for authentication, the
Company shall deliver to the Trustee the following:
(i) the Board Resolution by or pursuant to which such form of Security
or coupons has been approved, certified by the Secretary or an
Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof shall be established as provided in
this Section 2.02.
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SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank (National
Association), as Trustee
By __________________________________
Authorized Officer
Section 2.04. Global Securities.
If Securities of a series are issuable in whole or in part in global form,
as specified as contemplated by Section 3.01, then, notwithstanding clause (xi)
of Section 3.01 and the provisions of Section 3.02, such Global Security shall
represent such of the outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or increased to reflect the issuance of
additional uncertificated securities of such series. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued up
to the aggregate principal amount of Securities from time to time authorized by
or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to this Article Three or Sections 4.07,
9.06 or 14.03);
(iii) the date or dates on which the principal and premium, if any,
of the Securities of the series is payable;
Page 23
(iv) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any Interest
Payment Date and the basis upon which interest shall be calculated if
other than that of a 360-day year consisting of twelve 30-day months;
(v) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(vi) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(vii) the office or offices or agency where, subject to Section
5.02, the Securities may be presented for registration of transfer or
exchange;
(viii) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(ix) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(x) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xi) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xii) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of
the series are to be issuable with or without coupons or both and, in the
case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Security of such series of like tenor and term to be issued;
(xiii) the currency or currencies of denominations of the Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(xiv) the currency or currencies in which payment of the principal
of (and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if payments of principal of (and premium, if any), or interest
on the Securities of the series are to be made in a Foreign Currency other
than the currency in which such Securities are denominated, the manner in
which the Exchange Rate with respect to such payments shall be determined;
(xvi) the terms, if any, upon which the Securities of the series may
be convertible into or exchanged for Common Stock, preferred stock (which
may be represented by depositary shares), other debt securities or
warrants for Common Stock, preferred stock or indebtedness or other
securities of any kind of the Company or any other obligor, and the terms
and conditions upon which such conversion or exchange shall be effected,
including the initial conversion or exchange price or rate, the conversion
or exchange period and any other provision in addition to or in lieu of
those described herein;
Page 24
(xvii) if the amount of payments of principal of (and premium, if
any) or any interest on Securities of the series may be determined with
reference to an index, the method or methods by which such amounts shall
be determined;
(xviii) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 7.02;
(xix) any addition to or change in the Events of Default or
covenants of the Company pertaining to the Securities of the series; and
(xx) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers' Certificate or in any such
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any instalment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in such form and
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any specification with respect to the Securities of any series, the
Registered Securities of each series shall be issuable only as Securities
without coupons in denominations of $1,000 and any integral multiple thereof and
the Bearer Securities of each series, if any, shall be issuable with coupons and
in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, a Vice Chairman of the Board, its Chief Financial
Officer or one of its Executive Vice Presidents and by its Secretary or one of
its Assistant Secretaries. The signatures of any or all of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Company's Chairman of the Board, its President, a Vice Chairman
of the Board, its Chief Financial Officer, one of its Executive Vice Presidents
or the Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer
Page 25
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have delivered to the Trustee, or such other Person
as shall be specified in a temporary Global Security delivered pursuant to
Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security
in registered form must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner
of determining such terms have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution or Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and Opinion of
Counsel otherwise required pursuant to this Section 3.03 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series; provided that any subsequent
request by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by the
Company that as of the date of such request, the statements made in the
Officers' Certificate or other certificates delivered pursuant to Sections 1.02
and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities
Page 26
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic, electronic or written order of Persons designated in such
Company Order, Officers' Certificate, supplemental indenture or Board Resolution
and that such Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall be
dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order and the receipt of the
certifications and opinions required under Sections 3.01 and 3.03, the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities. In the case of any series which may be issuable as Bearer
Securities, such temporary Securities may be in global form, representing such
of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the
following paragraphs, if temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series
of authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall
be delivered in exchange for a temporary Bearer Security only in
compliance with the
Page 27
conditions set forth in Section 3.03. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global
form, any such temporary Global Security shall, unless otherwise provided
in such temporary Global Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit
of the operator of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct). Upon receipt of written instructions (which
need not comply with Section 1.02) signed on behalf of the Company by any
Person authorized to give such instructions, the Trustee or any
Authenticating Agent shall endorse such temporary Global Security to
reflect the initial principal amount, or an increase in the principal
amount, of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any
time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest
of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities (including a
definitive global Bearer Security) of such series and of like tenor
following the Global Exchange Date (as defined below) when the account
holder instructs Euroclear or CEDEL S.A., as the case may be, to request
such exchange on his behalf and delivers to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form required by Section 3.11(i),
dated no earlier than 15 days prior to the Global Exchange Date, copies of
which certificate shall be available from the offices of Euroclear and
CEDEL S.A., the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary Global Security, except
that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or CEDEL S.A. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to any
such Authenticating Agent, definitive Securities in aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. Unless otherwise specified as contemplated by
Section 3.01, such definitive Securities shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as may be
specified by the Company, the Trustee or any such Authenticating Agent, as
may be appropriate. On or after the Global Exchange Date, such temporary
Global Security shall be surrendered by the Common Depositary to the
Trustee or any such Authenticating Agent, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series, of authorized
denominations and of like tenor as the portion of such temporary Global
Security to be exchanged, which, except as otherwise specified as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, provided, however,
that, unless otherwise specified in such temporary Global Security, upon
such presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Global Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and a
certificate dated the Global Exchange Date or a subsequent date and signed
by CEDEL S.A., as to the portion of such temporary Global Security held
for its account then to be exchanged, each in the form required by Section
3.11(ii); and provided, further, that a definitive Bearer Security
(including a definitive
Page 28
global Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the conditions set forth
in Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee
or any such Authenticating Agent, as the case may be, to reflect the
reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount
so exchanged. Until so exchanged in full, such temporary Global Security
shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Global Exchange Date shall be payable,
without interest, to Euroclear and CEDEL S.A. on or after such Interest
Payment Date upon delivery by Euroclear and CEDEL S.A. to the Trustee or
the Paying Agent, as the case may be, of a certificate or certificates in
the form required by Section 3.11(iii), for credit on or after such
Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form required by Section 3.11(iv).
Any interest so received by Euroclear and Cedel S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two
years after such Interest Payment Date, shall repay such interest on
Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
With respect to Registered Securities, the Company shall keep or cause to
be kept a register (sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the registration of
transfers of Registered Securities and the Company shall appoint a "Security
Registrar", and may appoint any "Co-Security Registrar", as may be appropriate,
to keep the Security Register. Such Security Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if
Page 29
the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment from the Company;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency of a
Paying Agent, maintained pursuant to Section 5.02 for such purpose, located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vi) shall
no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will deliver, Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary
a new Security or Securities of the same series, of like tenor and terms
and of any authorized denomination as requested by such Person in
Page 30
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive form,
such Global Securities shall be cancelled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer
or exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may (unless otherwise provided in
such Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar
shall be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business 15
days before the day of selection of Securities of such series to be redeemed and
ending at the close of business on (A) if Securities of the series are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Page 31
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and (ii) there is delivered
to the Company, the Trustee and the Security Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company, the Trustee or the Security Registrar that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and Stated Maturity and of like tenor and principal amount, bearing a
number not contemporaneously outstanding and, if applicable, with coupons
corresponding to the coupons appertaining thereto; provided, however, that any
new Bearer Security will be delivered only in compliance with the conditions set
forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security; provided, however,
that payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise specified as contemplated by
Section 3.01, in case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency referred to in Section 3.05)
Page 32
on any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture. At the option of the Company, payment of interest
on any Registered Security may be made by check in the currency designated for
such payment pursuant to the terms of such Registered Security mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account in such currency designated
by such Person in writing not later than ten days prior to the date of such
payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class, postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer
be payable pursuant to the following clause (ii). In case a Bearer
Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any Special
Record Date and before the opening of business at such office or agency on
the related proposed date of payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such proposed
date for payment and Defaulted Interest will not be payable on such
proposed date for payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this
Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Page 33
Subject to the limitations set forth in Section 5.02, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners.
Title to any Bearer Security, any coupons appertaining thereto and any
temporary Global Security shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation.
Unless otherwise provided with respect to a series of Securities, all
Securities and coupons surrendered for payment, registration of transfer,
exchange, repayment or redemption shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee. All Securities so delivered or
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All cancelled Securities or coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company.
SECTION 3.10. Computation of Interest.
Interest on the Securities of each series shall be computed as shall be
specified as contemplated by Section 3.01.
SECTION 3.11. Forms of Certification.
Unless otherwise provided pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes as
shall be approved by the Company.
Page 34
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form
of Exhibit B hereto, with only such changes as shall be approved by the
Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with payment of interest with respect to a temporary
Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner
of a portion of a temporary Global Security in connection with payment of
interest with respect to a temporary Global Security prior to the related
Global Exchange Date, such certification shall be provided substantially
in the form of Exhibit D hereto, with only such changes as shall be
approved by the Company.
SECTION 3.12. Judgments
The Company may provide, pursuant to Section 3.01, for the Securities of
any series that, to the fullest extent possible under applicable law and except
as may otherwise be specified as contemplated in Section 3.01, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest of the Securities of any series and any appurtenant coupons in a
Foreign Currency, composite currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and, except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, in
accordance with this Article.
SECTION 4.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable at the
option of the Company shall be evidenced by an Officers' Certificate. In case of
any redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and the Security Registrar of such Redemption Date
and of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided
Page 35
in the terms of such Securities or elsewhere in this Indenture, or (ii) pursuant
to an election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities to be Redeemed.
If less than all the Securities of any series with the same terms are to
be redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal to
or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of Securities
of such series so selected for partial redemption shall be, in the case of
Registered Securities, equal to $1,000 or an integral multiple thereof or, in
the case of Bearer Securities, equal to $5,000 or an integral multiple thereof,
and the principal amount of any such Security which remains outstanding shall
not be less than the minimum authorized denomination for Securities of such
series.
The Security Registrar shall promptly notify the Company, the Trustee and
the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.06, not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) if less than all Outstanding Securities of any series having
the same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed,
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed, and that interest,
if any, thereon shall cease to accrue on and after said date,
(v) the place or places where such Securities, together in the
case of Bearer Securities with all remaining coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(vi) that the redemption is for a sinking fund, if such is the
case, and
(vii) the CUSIP number or the Euroclear or the CEDEL reference
number (or any other number used by a Depositary to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
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SECTION 4.05. Deposit of Redemption Price.
At or prior to the opening of business on any Redemption Date, the Company
shall deposit or cause to be deposited with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 5.03) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided, however, that deposits with respect to Bearer Securities shall be made
with a Paying Agent or Paying Agents located outside the United States except as
otherwise provided in Section 5.02, unless otherwise specified as contemplated
by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price; provided, however, that instalments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest. Instalments of interest
on Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company in a Place of Payment therefor (with, if the
Company or the Security Registrar so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder of such Security or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and Stated Maturity, containing
identical terms and conditions, of any authorized denominations as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default
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known to the Trustee, except that where the giving of notice of redemption of
any Securities shall theretofore have been made, the Trustee shall, subject to
the provisions of Section 14.04, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness and creditors in respect of General Obligations, except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the Holders and applied in the manner set forth in Section 7.06;
provided, however, that in case such Event of Default shall have been waived as
provided herein or otherwise cured, such moneys shall thereafter be held and
applied in accordance with the provisions of this Article.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on the Securities of such series in accordance with the terms
of the Securities of such series, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only outside the United States upon
presentation and surrender of the several coupons for such interest instalments
as are evidenced thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If Securities of a series
may be issuable as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, The City of New York an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts
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payable on Bearer Securities of that series pursuant to Section 5.04) at the
place specified for the purpose as contemplated by Section 3.01, and the Company
hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section and
may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints: (i) The
Chase Manhattan Bank (National Association), as its Paying Agent in The City of
New York with respect to all series of Securities having a Place of Payment in
The City of New York and (ii) the Bank at its principal office as its Paying
Agent in the City of Chicago with respect to all series of Securities having a
Place of Payment in the City of Chicago.
Section 5.03. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of such series and any
appurtenant coupons, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, at or prior to the opening of business on each due date
of the principal of, premium, if any, or interest on any Securities of such
series and any appurtenant coupons, deposit with a Paying Agent a sum sufficient
to pay the principal, premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will
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(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such series
or any appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payments by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto additional amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series or payment of any related coupon or the net proceeds received on the sale
or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any,
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required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate (provided, however,
that one of the signatories of which shall be the Company's principal executive
officer, principal financial officer or principal accounting officer) stating,
as to each signer thereof, that
(i) a review of the activities of the Company during such year and
of performance under this Indenture and under the terms of the Securities
has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment
of any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, a Default, or if such an event has occurred and is
continuing, specifying such event known to him and the nature and status
thereof.
For purposes of this Section, compliance or default shall be determined
without regard to any period of grace or requirement of notice provided for
herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.
So long as any of the Securities shall be Outstanding, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises to carry on its business;
provided, however, that nothing in this Section 5.06 shall prevent (i) any
consolidation or merger of the Company, or any conveyance or transfer of its
property and assets substantially as an entirety to any person, permitted by
Article Ten, or (ii) the liquidation or dissolution of the Company after any
conveyance or transfer of its property and assets substantially as an entirety
to any person permitted by Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each February 1 and August 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
February 1 and August 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is requested to be furnished; provided, however, that if and so
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such Series of Securities.
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SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(a) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 6.02(i), or
(b) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders of Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee.
(i) Within 60 days after May 1 of each year commencing with the year
1996, the Trustee shall mail to each Holder reports concerning the Trustee and
its action under the Indenture as may be required pursuant to the Trust
Indenture Act if and to the extent and in the manner provided pursuant thereto.
Page 42
(ii) Reports pursuant to this Section shall be transmitted by mail (1) to
all Holders of Registered Securities, as their names and addresses appear in the
Security Register and (2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose, and (3) except in the cases of reports under
Section 313(b)(2) of the Trust Indenture Act, to each Holder of a Security of
any series whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company.
The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and
to the extent provided in Section 6.03(ii), within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default.
"Event of Default", with respect to any series of Securities, wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the supplemental indenture or Board Resolution under
which such series of Securities is issued or in the form of Security for such
series:
(i) the entry of a decree or order by a court having jurisdiction
in the premises granting relief in respect of the Company in an
involuntary case under the Federal Bankruptcy Code, adjudging the Company
a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or other similar law, or
appointing a receiver (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or
liquidation
Page 43
of its affairs under any such law, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent of the Company to the institution
of bankruptcy proceedings against it, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal or State
bankruptcy, insolvency or similar law, or the consent by the Company to
the filing of any such petition or to the appointment of a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of its properties under
any such law; or
(iii) any other Event of Default provided with respect to Securities
of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities for which
there are Securities Outstanding occurs and is continuing, then, and in every
such case, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series may declare the principal of all
the Securities of such series (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue instalments of interest on all Securities of
such series,
(b) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor by the terms of the Securities of such
series,
(c) to the extent that payment of such interest is lawful,
interest upon overdue instalments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series,
and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, the Security Registrar, any Paying Agent, and their
agents and counsel and all other amounts due the Trustee under
Section 8.07 and
(ii) all other Defaults with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 7.13.
No such recission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(i) default is made in the payment of any instalment of interest
on any Security of any series when such interest becomes due and payable
and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium,
if any, on any Security of any series at the Maturity thereof,
Page 44
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue instalments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of any Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
Page 45
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money Collected.
Any money collected by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee, and, in case of the distribution of such money on
account of principal, premium, if any, or interest, upon presentation of the
Securities of such series or coupons appertaining thereto, if any, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest,
respectively. The Holders of each series of Securities denominated in ECU,
any other composite currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Securities and matured but unpaid
interest on such series of Securities in the currency in which such series
of Securities is denominated into Dollars at the Exchange Rate as of the
date of declaration of acceleration of the Maturity of the Securities; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee
of a continuing Default with respect to Securities of such series;
(ii) the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Default in its
own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference
Page 46
over any other such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all the
Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 7.01; or
(b) default in the payment of the principal of or premium, if any,
on any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security of
such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform
any of the other covenants or agreements on its part in the Securities of
such series or in this Indenture and continuance of such failure for a
period of sixty days after the date on which written notice of such
failure, requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have been given by
registered mail to the Company by the Trustee, or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of
the Securities of such series at the time Outstanding, or
(e) any other Default provided with respect to Securities of that
Series.
SECTION 7.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
3.07) interest on such Security or payment of such coupon on the respective
Stated Maturities expressed in such Security or coupon (or, in the case of
redemption or repayment on the Redemption Date or Repayment Date) and to
institute suit for the enforcement of such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, lost, destroyed or stolen Securities or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiesence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Page 47
SECTION 7.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture,
(ii) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability, and
(iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder and its consequences, except a
default not theretofore cured
(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default
or Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of Securities or coupons for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security or payment of any
coupon on or after the respective Stated Maturities expressed in such Security
or coupon (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extention law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Page 48
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.
(i) Except during the continuance of a Default with respect to any
series of Securities,
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
Securities of such series, and no implied covenants or obligations shall
be read into this Indenture against the Trustee with respect to such
series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform as to form to the
requirements of the Indenture.
(ii) In case a Default with respect to any series of Securities has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(iii) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default.
Within 90 days after the occurrence of any default hereunder with respect
to Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series entitled to receive reports pursuant to Section
6.03(ii) notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of, premium, if any, or
interest on any Security of such series, or any related coupons or in the
payment of any sinking fund instalment with respect to Securities of such series
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character
Page 49
specified in Section 7.07(d) with respect to Securities of such series, no such
notice to Holders of Securities of such series shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, means any event which is,
or after notice or lapse of time, or both, would become, a Default or an Event
of Default with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Eight shall
also be afforded to such Paying Agent, Authenticating Agent or Security
Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Page 50
SECTION 8.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
8.08 and 8.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 8.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement.
The Company agrees
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture, the termination of this Indenture and the repayment of the Securities
whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 of the Trust Indenture Act, the Trustee shall either
eliminate such conflicting interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any
particular series of Securities other than that series or by virtue of being
trustee under the Indenture dated as of July 15, 1992, between the Company and
the Trustee.
Page 51
SECTION 8.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each series of
Securities hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject to
supervision or examination by Federal or State authority, provided, however,
that if Section 310(a) of the Trust Indenture Act or the rules and regulations
of the Commission under the Trust Indenture Act at any time permit a corporation
organized and doing business under the laws of any other jurisdiction to serve
as trustee of an indenture qualified under the Trust Indenture Act, this Section
8.09 shall be automatically deemed amended to permit a corporation organized and
doing business under the laws of any such jurisdiction to serve as Trustee
hereunder. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at
any time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities
at any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security of
such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series, or
(c) the Trustee shall become incapable of acting with respect to
any series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
Page 52
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each place of payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Principal Corporate Trust
Office.
SECTION 8.11. Acceptance of Appointment by Successor.
(i) In the case of the appointment hereunder of a successor Trustee with
respect to any series of Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective with respect to all or
any series as to which it is resigning as Trustee, and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to all or
any such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series, subject nevertheless to its lien, if any, provided for in Section
8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such
Page 53
Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, subject nevertheless to
its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents.
The Trustee may appoint an Authenticating Agent or Agents, which may include
any Affiliate of the Company, with respect to one or more series of Securities.
Such Authenticating Agent or Agents at the option of the Trustee shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issuance, exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Whenever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication or the delivery of Securities to the Trustee for authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent, a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent and delivery of
Securities to the Authenticating Agent on behalf of the Trustee. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating
Page 54
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in writing
by the Company and if such Authenticating Agent meets the minimum capitalization
requirements of this Section 8.14. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank (National
Association), as Trustee
By____________________________________
As Authenticating Agent
By____________________________________
Authorized Officer
Page 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right or
power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the interests
of the Holders of Securities of any series or any related coupons in any
material respect; or
(v) to add any additional Defaults or Events of Default with respect to
all or any series of the Securities (and, if such Defaults or Event of
Default is applicable to less than all series of Securities, specifying the
series to which such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture, provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision or (b)
shall not apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms
thereof; or
(xi) to add to or change or eliminate any provision of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Securities of any series or any appurtenant coupons in
any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture or indentures (acting as one class), by Act of
Page 56
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of any
instalment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest
thereon, or change the obligation of the Company to pay additional amounts
pursuant to Section 5.04 (except as contemplated by Section 10.01 (i) and
permitted by Section 9.01), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02,
or change the method of calculating interest thereon or the coin or currency
in which any Security (or premium, if any, thereon) or the interest thereon
is payable, or reduce the minimum rate of interest thereon, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption or repayment, on
or after the Redemption Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or of
certain defaults hereunder and their consequences) provided for in this
Indenture or reduce the requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or agency
in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except
to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included soley for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, liabilities, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the TIA as then in effect.
Page 57
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.07. Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall directly or
indirectly modify the provisions of Article Fourteen in any manner which might
alter the subordination of the Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless
(i) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, premium, if any, and interest (including all
additional amounts, if any, payable pursuant to Section 5.04) on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default, and
no event which, after notice or lapse of time, or both, would become a
Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. In the event of any such
conveyance or transfer, the Company as the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
Page 58
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and rights to receive payments thereon and any right to
receive additional amounts, as provided in Section 5.04), and the Trustee, on
receipt of a Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(i) either
(a) all Securities theretofore authenticated and delivered (other than
(1) coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has not been waived as provided in Section 3.05, (2)
coupons appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 4.07, (3) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (4) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 5.03) have been delivered to the Trustee for
cancellation; or
(b) all such Securities not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year,
or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited
or caused to be deposited with the Trustee, as trust funds in trust for
the purpose, an amount (said amount to be immediately due and payable to
the Holders) sufficient to pay and discharge the entire indebtedness on
such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due and
payable), or to the Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in Clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 5.03, all money
deposited with the Trustee pursuant to Section 11.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons,
if any, and this Indenture, to the payment, either directly or through any
Paying Agent
Page 59
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance
with Section 11.02 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.01 until such time as the Trustee or
any Paying Agent is permitted to apply all such money in accordance with Section
11.02.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or coupons or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
Page 60
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto and
(ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying (i) the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, (ii)
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each sinking fund payment date the Security
Registrar shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 4.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 4.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 4.06 and 4.07.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of a Security by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal and premium, if any, and interest on
each and all of the Securities is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness and, subject to the provisions of
Section 14.09, General Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the Holders thereof (and, upon the General
Obligations and the creditors in respect thereof with respect to the Securities
and the Holders thereof) by a lawful plan of reorganization under applicable
bankruptcy law),
(i) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in accordance with the terms of such Senior
Indebtedness of the principal thereof, premium, if any, and the interest due
thereon (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or
Page 61
hereafter in effect) before the Holders of the Securities are entitled to
receive any payment upon the principal of or premium, if any, or interest on
indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article Fourteen, including any such payment or distribution which may
be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities, shall be
paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, in accordance with the priorities then
existing among holders of Senior Indebtedness for payment of the aggregate
amounts remaining unpaid on account of the principal of and premium, if any,
and interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or hereafter in effect)
on the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; it being understood that if the Holders
of Securities shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to thirty days before
the expiration of the time to file such claim or claims, then the holders of
Senior Indebtedness are hereby authorized to file an appropriate claim or
claims for and on behalf of the Holders of Securities in the form required in
any such proceeding (as are the creditors in respect of General Obligations
in the event Section 14.09 is applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinate to the payment of the
Securities, shall be received by the Trustee or Holders of the Securities
before all Senior Indebtedness is paid in full, such payment or distribution
shall be held in trust for the benefit of and shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the
Securities are subordinated and is entitled to like rights of subrogation) to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
the Senior Indebtedness until the principal of and premium, if any, and
interest on the Securities shall be paid in full and no such payments or
distributions to holders of such Senior Indebtedness to which the Holders of
the Securities would be entitled except for the provisions hereof of cash,
property or securities otherwise distributable to the Senior Indebtedness
shall, as between the Company, its creditors, other than the holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Company to or on account of the Securities. It is understood
that the provisions of this Article Fourteen are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of Senior Indebtedness (and, in the case of
Section 14.09, the Holders of the Securities, on the one hand, and creditors
in respect of General Obligations) on the other hand. Nothing contained in
this Article Fourteen or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors, other
than the holders of Senior Indebtedness, and the Holders of the Securities,
the obligation of the Company, which is unconditional and absolute (and
which, subject to the rights under this Article Fourteen of the holders of
the Senior
Page 62
Indebtedness and the rights under Section 14.09 of creditors in respect of
General Obligations, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or a creditor in respect of General Obligations as evidence that
such Person is a holder of Senior Indebtedness (or is such a trustee or
representative) or a creditor in respect of General Obligations, as the case may
be. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person, as a holder of
Senior Indebtedness or a creditor in respect of General Obligations, to
participate in any payment or distribution pursuant to this Section or Section
14.09, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or General
Obligations held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section or Section 14.09, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
The obligations of the Company in respect of the Securities shall rank on a
parity with the Existing Subordinated Indebtedness and any other obligations of
the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in respect of
General Obligations, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness or creditors in respect of General Obligations shall be read into
this Indenture against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or creditors in
respect of General Obligations, and shall not be liable to any such holders or
creditors if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holders of
Senior Indebtedness or creditors in respect of General Obligations shall be
entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default under
Senior Indebtedness.
In the event and during the continuation of any default in the payment of
principal of, or premium, if any, or interest on, any Senior Indebtedness beyond
any applicable period of grace, or in the event that any event of default with
respect to any Senior Indebtedness shall have occurred and be continuing, or
would occur as a result of the payment referred to hereinafter, permitting the
holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such default
or event of default shall have been cured or waived or shall have ceased to
exist, no payment of principal of, or premium or interest on the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities, shall be made by the Company.
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SECTION 14.04. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall (i)
impair, as between the Company and Holders of Securities, the obligation of the
Company to make, or prevent the Company from making, at any time except as
provided in Sections 14.02, 14.03 and 14.09, payments of principal of or
premium, if any, or interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on the Securities, as and when the same shall become due
and payable in accordance with the terms of the Securities, (ii) affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of the Senior Indebtedness of the Company and the
creditors in respect of General Obligations, (iii) prevent the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default thereunder, subject to the rights, if any, under Article Fourteen of the
holders of Senior Indebtedness and the creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of such remedy, or (iv) prevent the application by the Trustee
or any Paying Agent of any moneys deposited with it hereunder to the payment of
or on account of the principal of or premium, if any, or interest on the
Securities or prevent the receipt by the Trustee or any Paying Agent of such
moneys, if, prior to the second Business Day prior to such deposit, the Trustee
or such Paying Agent did not have written notice of any event prohibiting the
making of such deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee in his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article Fourteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee.
Notwithstanding the provisions of this Article or any other provisions of the
Indenture, neither the Trustee nor any Paying Agent shall be charged with
knowledge of the existence of any Senior Indebtedness or General Obligations or
of any event which would prohibit the making of any payment of moneys to or by
the Trustee or such Paying Agent, unless and until a Responsible Officer of the
Trustee assigned to its Corporate Trustee Administration Department or such
Paying Agent shall have received written notice thereof from the Company or from
the holder of any Senior Indebtedness or from the representative of any such
holder or from any creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee to Hold Senior Indebtedness or General
Obligations.
The Trustee shall be entitled to all of the rights set forth in this Article
in respect of any Senior Indebtedness or General Obligation at any time held by
it in its individual capacity to the same extent as any other holder of such
Senior Indebtedness or creditor in respect of such General Obligation and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder or creditor.
SECTION 14.08. Article Fourteen Not to Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 14.09. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases.
(i) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant
to Section 3.01, the Securities shall rank pari passu in right of payment
with the Existing Subordinated Indebtedness.
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(ii) Upon the occurrence of any of the events specified in the first
paragraph of Section 14.02, the provisions of that Section and the
corresponding provisions of each indenture (including this Indenture) or
other instrument or document establishing or governing the terms of any
Existing Subordinated Indebtedness shall be given effect on a pro rata basis
to determine the amount of cash, property or securities which may be payable
or deliverable as between the holders of Senior Indebtedness, on the one
hand, and the Holders of the Securities and holders of Existing Subordinated
Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or
securities shall be available for payment or distribution in respect of the
Securities ("Excess Proceeds"), and any creditors in respect of General
Obligations shall not have received payment in full of all amounts due or to
become due on or in respect of such General Obligations (and provision shall
not have been made for such payment in money or money's worth), then such
Excess Proceeds shall first be applied (ratably with any amount of cash,
property or securities available for payment or distribution in respect of
any other indebtedness of the Company that by its express terms provides for
the payment over of amounts corresponding to Excess Proceeds to creditors in
respect or General Obligations) to pay or provide for the payment of the
General Obligations remaining unpaid, to the extent necessary to pay all
General Obligations in full, after giving effect to any concurrent payment or
distribution to or for creditors in respect of General Obligations. Any
Excess Proceeds remaining after payment (or provision for payment) in full of
all General Obligations shall be available for payment or distribution in
respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of
subsection (iii) of this Section, the Trustee or Holder of any Security
shall, in the circumstances contemplated by such subsection, have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all General
Obligations are paid in full or payment thereof duly provided for, and if
such fact shall, at or prior to the time of such payment or distribution have
been made known to the Trustee or, as the case may be, such Holder, then and
in such event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 14.02, such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for payment in accordance
with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the Holder
of the Securities shall be subrogated (equally and ratably with the holders
of all indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to creditors in
respect of General Obligations and is entitled to like rights of subrogation)
to the rights of the creditors in respect of General Obligations to receive
payments and distributions of cash, property and securities applicable to the
General Obligations until the principal of and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to creditors in respect of General Obligations of any cash,
property or securities to which Holders of the Securities or the Trustee
would be entitled except for the provisions of this Section, and no payments
over pursuant to the provisions of this Section to creditors in respect of
General Obligations by Holders of Securities or the Trustee, shall, as among
the Company, its creditors (other than creditors in respect of General
Obligations) and the Holders of Securities be deemed to be a payment or
distribution by the Company to or on account of the General Obligations.
(vi) The provisions of subsections (iii), (iv) and (v) of this Section are
and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the creditors in respect
of General Obligations, on the other hand, after giving effect to the rights
of the holders of Senior Indebtedness, as provided in this Article. Nothing
contained in subsections (iii), (iv) and (v) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Securities and (a) the holders of Senior Indebtedness, (b) the holders of
Existing Subordinated Indebtedness or (c) other creditors of the Company
other than creditors in respect of General Obligations.
Page 65
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for Securities
of such series) in accordance with this Article.
Section 15.02. Repayment of Securities.
Each Security which is subject to repayment in whole or in part at the option
of the Holder thereof on a Repayment Date shall be repaid at the applicable
Repayment Price together with interest accrued to such Repayment Date as
specified pursuant to Section 3.01.
Section 15.03. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment shall, as
conditions to such repayment, surrender the Security to be repaid in whole or in
part together with written notice of the exercise of such option at any office
or agency of the Company in a Place of Payment, not less than 30 nor more than
45 days prior to the Repayment Date; provided, however, that surrender of Bearer
Securities together with written notice of exercise of such option shall be made
at an office or agency located outside the United States except as otherwise
provided in Section 5.02. Such notice, which shall be irrevocable, shall specify
the principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series and tenor of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be paid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States federal income tax
laws
Page 66
then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
Section 15.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their Debt
Securities in accordance with Section 15.03.
Section 15.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 15.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price, in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate prescribed therefor by such Securities from time to time until payment
in full of such principal amount.
ARTICLE SIXTEEN
Meetings of Holders of Securities
Section 16.01. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 16.02. Call, Notice and Place of Meetings.
(i) The Trustee may at any time call a meeting of Holders of Securities of
any series issuable as Bearer Securities for any purpose specified in Section
16.01, to be held at such time and at such place in the City of Chicago,
Illinois, the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of
Page 67
such series in the amount above specified, as the case may be, may determine the
time and the place in the City of Chicago, Illinois, the Borough of Manhattan,
The City of New York, or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (i) of this
Section.
Section 16.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series,
a Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 16.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of a greater percentage
in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote such greater percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairperson of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
16.02(i), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided,
further, that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Page 68
Section 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in Section 1.04
or, in the case of Bearer Securities, by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 16.02 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 16.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 16.02 and, if
applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Page 69
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
The Chase Manhattan Bank (National Association) hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
First Chicago NBD Corporation
BY________________________________
Senior Vice President and
Treasurer
Attest:
[CORPORATE SEAL]
Assistant Secretary
The Chase Manhattan Bank (National
Association), as Trustee
BY________________________________
Attest:
Assistant Secretary
Page 70
)
State of Illinois, ) ss.:
County of Cook )
)
|
On this day of , 1995, before me personally came , to me known, who, being by
me duly sworn, did depose and say that he resides at Chicago, Illinois; that he
is Senior Vice President and Treasurer of FIRST CHICAGO NBD CORPORATION, one of
the corporations described in and which executed the foregoing instrument; that
he knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[Notarial Seal]
------------------------------
Notary Public
)
State of , ) ss.:
County of )
)
On this day of , 1995, before me personally appeared , to me
|
known, who, being by me duly sworn, did depose and say that he resides at
; that he is a of The Chase Manhattan Bank (National Association),
one of the parties described in and which executed the foregoing instrument; and
that he signed his name by authority of the Board of Directors of said
association.
[Notarial Seal]
Notary Public
Page 71
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being acquired
by or on behalf of a United States person, or, if a beneficial interest in the
Securities is being acquired by or on behalf of a United States person, that
such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If the
undersigned is a dealer, the undersigned agrees to obtain a similar certificate
from each person entitled to delivery of any of the above-captioned Securities
in bearer form purchased from it; provided, however, that, if the undersigned
has actual knowledge that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to the person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the date of delivery of the above-captioned
Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:_____, 19___
[To be dated no earlier than 15 days prior
to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security]
(Authorized Signatory)
Name:
Title:
Page 72
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN CONNECTION WITH
THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $_________ principal amount of the above-
captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: ________, 19___
[To be dated no earlier than
the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By ___________________________________
Page 73
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert Date],
the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will be
paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (S) 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
The foregoing reflects any advice received subsequent to the date of any
certificate stating that the statements contained in such certificate are no
longer correct.
Dated:______, 19____
[To be dated on or after the
relevant Interest Payment
Date]
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, Brussels Office, as Operator of
the Euro-clear System]
[CEDEL S.A.]
By____________________________________
Page 74
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the temporary
global Security representing the above-captioned Securities and held by you for
our account is beneficially owned by a United States person or, if any portion
thereof held by you for our account is beneficially owned by a United States
person, such United States person is a financial institution within the meaning
of Section 1.165-12(c)(1)(v) of the United States Treasury regulations which
agrees to comply with Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended and the regulations thereunder, and certifies that
either it has provided an Internal Revenue Service Form W-9 or is an exempt
recipient as defined in Section 1.6049-4(c)(1)(ii) of the United States Treasury
regulations.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the Interest Payment Date on [Insert Date] as to any
such portion of such temporary global Security.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:________, 19____
[To be dated on or after the
15th day before the relevant
Interest Payment Date]
[Name of Account Holder]
(Authorized Signatory)
Name:
Title:
Page 75
EXHIBIT-10.1
THE CHASE MANHATTAN CORPORATION
DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(As amended and restated December 1996)
1. Definitions - The following are defined terms wherever they appear in the
Plan.
1.1 "Administrator" shall mean the Secretary, or such other person or committee
appointed by the Chief Executive Officer of the Corporation, responsible for
those functions assigned to the Administrator under the Plan.
1.2 "Bank" shall mean The Chase Manhattan Bank.
1.3 "Board of Directors" shall mean the Board of Directors of the Corporation
or the Bank.
1.4 "Corporation" shall mean The Chase Manhattan Corporation.
1.5 "Deferred Compensation Account" or "Account" shall mean the separate account
established under the Plan for each Participant as described in Section 3.1.
1.6 "Director" shall mean a member of the Board of Directors of the Corporation
or the Board of Directors of the Bank who is not also an employee (or former
employee) of the Corporation or the Bank.
1.7 "Participant" shall mean each Director who participates in the Plan in
accordance with the terms and conditions of the Plan.
1.8 "Plan" shall mean the Deferred Compensation Plan for Non-Employee Directors
of The Chase Manhattan Corporation and The Chase Manhattan Bank, as amended from
time to time.
1.9 "Stock" shall mean the Common Stock of the Corporation, $1.00 par value per
share.
1.10 "Valuation Date" shall mean the close of business on the last business day
of each calendar quarter.
1.11 "Subsidiary" shall mean any corporation which at the time qualifies as a
subsidiary of the Corporation under the definition of "subsidiary corporation"
in Section 425(f) of the Internal Revenue Code, as amended from time to time.
2 2. Participation.
2.1 Eligibility. Each Director is eligible to participate in the Plan.
2.2 Participation in the Plan; Termination of Participation. (a) An individual
may elect to participate by delivering a properly executed election form to the
Administrator. The election form shall specify: (1) the amount, by percentage or
by dollar amount, of cash compensation and/or the amount (but not less than all)
of Stock compensation to be deferred; (2) the allocation of deferred cash
compensation among the forms of hypothetical investment of such deferred
compensation; (3) the manner in which deferred compensation is to be paid; (4)
the date or dates for payment of deferred compensation; and (5) the manner of
payment of deferred compensation to a Participant's estate in the event of death
before complete distribution of deferred compensation. (b) The effective date
for participation in the Plan by an individual who is a Director shall be the
first day of the calendar year next beginning after the date that the
Administrator receives the individual's election to participate in the Plan. The
effective date of participation in the Plan for an individual who is not a
Director shall be the date that he becomes a Director if the Administrator has
received an election to participate in the Plan prior to that date. (c) A
Participant may elect to terminate participation in the Plan by delivering
written notice to the Administrator. The effective date for termination shall be
the date specified by the Participant in the notice of termination (but not
earlier than the date of such notice). (d) The deferral of a Participant's
compensation shall begin or end, as appropriate, as of the effective date of the
Participant's election to participate or of the Participant's notice to
terminate participation, as appropriate, described in paragraphs (b) and (c)
above.
2.3 Term of Election of Deferral; Modification or Termination of Election of
Deferral. (a) An election to defer compensation, or to modify a prior election
to defer compensation, must be made by the Participant prior to the commencement
of the period during which the compensation is earned or to which the
compensation relates and shall continue in effect until modified or terminated
by the Participant or until the Participant ceases to be eligible to participate
in the Plan. A Participant may at any time modify 2 3 or terminate an election
to defer compensation, but in each case only once in any 12-month period. (b) A
termination of an election to defer compensation shall apply prospectively only
and shall not affect previously deferred compensation. A Participant who
terminates an election to defer compensation is not eligible to participate in
the Plan again until 12 months after the date that the Participant's election to
terminate becomes effective under Section 2.2.
3. Compensation Deferred.
3.1 Deferred Compensation Account. (a) A Deferred Compensation Account shall be
established for each Participant. The Account shall consist of two parts: (1)
cash compensation deferred by a Participant under the Plan, along with
hypothetical income (or losses) on this compensation (the "Cash Account") and
(2) compensation in the form of Stock plus Stock credited to Participant as a
result of the hypothetical reinvestment of hypothetical dividends on such Stock
compensation (the "Stock Account"). The amount of cash deferred (plus income or
less losses) shall be credited to the Participant's Cash Account. The number of
shares of Stock deferred, plus Stock resulting from the hypothetical
reinvestment of hypothetical dividends on deferred Stock compensation, shall be
credited to the Participant's Stock Account. (b) Deferred cash compensation
shall
be credited to the Participant's Cash Account as of the last day of the month
during which such cash compensation was otherwise payable to the Participant.
For purposes of hypothetical investment of cash compensation under Section 3.3,
however, deferred cash compensation shall not be considered to be hypothetically
invested until the first day of the calendar quarter next following the date
that such compensation is credited to the Participant's Cash Account and shall
not begin to earn income until the first day of such quarter. (c) Deferred Stock
compensation shall be credited annually to the Participant's Stock Account as of
December 1 or such other date as may be specified by the Board of Directors for
the payment of Stock compensation.
3.2 Amount of Deferral. A Participant may elect to defer receipt of all or a
specified portion, by percentage or by dollar amount, of compensation otherwise
payable in cash and/or all (but not a portion of) compensation payable in Stock
to the Participant for services as a Director or as a member of a committee of
the Board of Directors of the Corporation or the Bank or as a member of any
advisory board of the Corporation, the Bank or any subsidiary of the Corporation
or the Bank. For these purposes, compensation shall include, but shall not be
limited to, Directors' fees (whether in cash or Stock), retainers, meeting fees,
fees for committees or other similar forms of remuneration, but shall not
include direct reimbursement of expenses.
3.3 Hypothetical Investment of Cash. Deferred cash compensation is assumed to be
invested, without charge, in one or more of the investment equivalents made
available from time to time hereunder. Descriptions of investment equivalents
available under the Plan shall be provided to each Participant on or prior to
the Participant making an allocation or reallocation of investment equivalents
into which any deferred cash payments are to be allocated or reallocated.
3.4 Time of Hypothetical Investment of Cash. The amount of cash in the
Participant's Cash Account on each Valuation Date which has not been previously
invested shall be deemed invested in a hypothetical investment on that Valuation
Date based on the value of the hypothetical investment on that date.
3.5 Allocation of Hypothetical Investments of Cash; Reallocation of Hypothetical
Investments of Cash. (a) A Participant may allocate the balance of the
Participant's Cash Account to one or more hypothetical investments. The
allocation shall be selected by the Participant. (b) A Participant may at any
time prospectively change the allocation of the hypothetical investment of
future deferred cash compensation. The reallocation of such future deferred
compensation may be made only once in a 12-month period and shall be effective
as of, and shall be based upon values in effect on, the Valuation Date which is
coincident with or next following the date that the Administrator receives the
Participant's written notification of the reallocation. (c) A Participant may at
any time also reallocate among the hypothetical investments any cash
compensation previously deferred by the Participant and then credited to the
Participant's Cash Account. This reallocation is in addition to the reallocation
described in paragraph (b) above and may be made only once in a 12-month period.
The reallocation shall be effective as of, and based upon values in effect on,
the Valuation Date which is coincident with or next following
the date that the Administrator receives the Participant's written notification
of the reallocation.
3.6 Hypothetical Dividends on Deferred Stock. Dividends shall be deemed to have
been paid on Stock allocated to a Participant's Stock Account as if such
allocated Stock were actual shares of Stock issued and outstanding on the record
date for dividends on Stock. Such hypothetical dividends shall be converted into
deferred shares of Stock and shall be credited to a Participant's Stock Account
quarterly on each payment date in the amount of such hypothetical dividends
divided by the average of the high and low selling price of one share of Stock
as reported in the New York Stock Exchange Composite Transactions on such
payment date. Fractional shares shall be credited to a Participant's Stock
Account cumulatively, but the balance of shares of Stock in a Participant's
Stock Account shall be rounded to the next highest whole share in the event of
any issuance and distribution of Stock to such Participant pursuant to Section
4.1. The number of shares of Stock in a Participant's Stock Account shall be
adjusted to reflect stock dividends, splits and reclassifications.
3.7 Balance of Deferred Compensation Account. The balance of each Participant's
Deferred Compensation Account shall include: (1) cash compensation deferred by
the Participant and income (or losses) from the hypothetical investment of this
compensation credited to the Participant's Cash Account and (2) Stock
compensation deferred by the Participant and credited to the Participant's Stock
Account and any additional Stock credited to the Participant's Stock Account
from the investment of dividends deemed paid on such Stock compensation. The
balance of each Participant's Deferred Compensation Account, and the income or
losses attributable to the Account since the last Valuation Date, shall be
determined as of each Valuation Date.
3.8 Statement of Account. A statement shall be sent to each Participant as to
the balance of the Participant's Deferred Compensation Account at least once a
calendar year.
4. Payment of Deferred Compensation.
4.1 Payment of Deferred Compensation. Upon termination of services as a
Director, the balance of the Participant's Deferred Compensation Account shall
(subject to Section 4.2) be paid to the Participant in the manner and at the
time selected by the Participant prior to the date of such termination. For
purposes of payment, the balance of the Participant's Account shall be valued as
of the Valuation Date coincident with or immediately preceding the date that the
balance, or the particular installment thereof, is to be paid, but the balance
of the Participant's Account shall include all compensation deferred by the
Participant since the last Valuation Date.
4.2 Elections Pertaining to Payments. The Participant may elect the manner of
payment of the balance of the Participant's Deferred Compensation Account,
whether in the Cash or Stock Account, including the dates of periodic payments
over a specified period of years or the date of a lump sum distribution,
provided that: (a) If the payment provides for installments, the payments shall
be made at least annually and not more frequently
than quarterly and shall be payable for a period not to exceed 15 years; (b)
Except as provided in paragraph (d) below, no payments may be made prior to the
first day of the calendar year following the calendar year during which the
Participant terminates services as a Director unless the payment is made
pursuant to Section 4.4 or Section 4.5; (c) No payments from any Participant's
Stock Account shall be payable otherwise than in shares of Stock; and (d) No
payments from any Participant's Cash Account shall be payable otherwise than in
cash.
4.3 Modifications of Elections Pertaining to Payments. A Participant may at any
time prior to the date that the Participant's service as a Director is
terminated modify previous elections pertaining to: (1) the date or dates and
the manner in which the balance of the Participant's Deferred Compensation
Account is to be paid and (2) the manner of payment of the balance of the
Participant's Deferred Compensation Account in the event of the Participant's
death.
4.4 Payments to a Deceased Participant's Estate or Beneficiaries. (a) A
Participant may elect by notice to the Administrator that in the event of the
Participant's death, any balance in the Participant's Deferred Compensation
Account shall be paid (i) to beneficiaries, named by the Participant, provided
that if no such election is made, payment shall be to the Participant's estate;
and (ii) in the same manner as provided with respect to the Participant,
provided that if no such election is made the balance of the Participant's
Deferred Compensation Account shall be determined as of the Valuation Date
coincident with or immediately following the Participant's death and this amount
shall be paid in a single payment to the Participant's estate as soon as
reasonably practicable thereafter. (b) In the event of a Participant's election
to have Deferred Compensation payments made in installments following the death
of such Participant, the Administrator may, upon consideration of the
application of the duly appointed administrator or executor of the Participant's
estate, or such beneficiaries as have been named by the Participant, direct that
the balance of the Participant's Deferred Compensation Account be paid in a
single payment. The payment shall be made at the time specified by the
Administrator.
4.5 Unforeseeable Emergency. A Participant may request the Administrator to make
payment in the care of an unforeseeable emergency. For purposes of this Plan, an
unforeseeable emergency is severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant or
of a dependent (as defined by relevant provisions of law) of the Participant,
loss of the Participant's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The circumstances that will constitute an
unforeseeable emergency will depend upon the facts of each case, but, in any
case, payment may not be made to the extent that such hardship is or may be
relieved (i) through reimbursement or compensation by insurance or otherwise,
(ii) by liquidation of the Participant's assets, to the extent the liquidation
of such assets would not itself cause severe financial hardship, or (iii) by
cessation of deferrals under the Plan. Examples of what are not considered to be
unforeseeable emergencies include the need to send a Participant's child to
college or the desire to purchase a home. Withdrawals of
amounts because of an unforeseeable emergency must only be permitted to the
extent reasonably needed to satisfy the emergency need.
5. General Provisions.
5.1 Participant's Rights Unsecured. The right of any Participant to receive
future payments of cash or Stock under the provisions of the Plan shall be an
unsecured claim against the general assets of the Corporation or the Bank, as
appropriate.
5.2 Assignability. No right to receive payments or distributions under the Plan
shall be transferable or assignable by a Participant, except by will, by the
laws of descent and distribution or by a court of competent jurisdiction. Any
other attempted assignment or alienation of payments under the Plan shall be
void and of no force or effect.
5.3 Administration. Except as otherwise provided herein, the Plan shall be
administered by the Administrator, who shall have the authority to adopt rules
and regulations for carrying out the Plan and who shall interpret, construe and
implement the provisions of the Plan.
5.4 Amendment. The Plan may at any time or from time to time be amended,
modified or terminated by the Corporation and/or the Bank, provided that no 7 8
amendment, modification or termination (a) shall, without the consent of the
Participant and the approval of the Board of Directors, adversely affect the
balance of a Participant's Deferred Compensation Account at that time or (b)
permit payment of the balance of a Participant's Deferred Compensation Account
prior to the date of payment specified in Section 4.2 (except for payments
provided in Section 4.4 or Section 4.5).
5.5 Legal Opinions. The Administrator may consult with legal counsel, who may be
counsel for the Corporation or other counsel, with respect to the
Administrator's obligations or duties hereunder, or with respect to any action,
proceeding or any question of law, and shall not be liable with respect to any
action taken or omitted to be taken, by the Administrator in good faith pursuant
to the advice of such counsel.
5.6 Liability. Any decision made or action taken by the Board of Directors, the
Administrator, or any employee of the Corporation or any of its subsidiaries
arising out of or in connection with the construction, administration,
interpretation or effect of the Plan shall be within their or its absolute
discretion and shall be conclusive and binding on all parties. Neither the
Administrator nor any member of the Board of Directors, and no employee of the
Corporation or of any of its subsidiaries, shall be liable for any act or action
hereunder, whether of omission or commission, except in circumstances involving
bad faith, or for any act of any other member or employee or of any agent to
whom duties in connection with the administration of the Plan have been
delegated.
5.7 Construction. The singular shall include the plural, where appropriate.
Exhibit 10.2
THE CHASE MANHATTAN CORPORATION
Post-Retirement Compensation Plan for Non-Employee Directors
(As amended and restated effective May 21, 1996.)
SECTION 1. Plan. This plan is the Chase Manhattan Corporation
Post-Retirement Compensation Plan for Non-Employee Directors.
SECTION 2. Definitions. For purposes of the Plan, the following terms
shall have the meanings specified below:
"Administrator" shall mean the person appointed by the Chief Executive
Officer of the Corporation to administer the Plan.
"Board" shall mean the Board of Directors of the Corporation.
"Common Stock" shall mean the shares of common stock, par value $1 per
share, of the Corporation.
"Corporation" shall mean The Chase Manhattan Corporation, a Delaware
corporation.
"Director" shall mean a person serving as a director of the
Corporation.
"Fair Market Value" shall mean the mean between the high and low
selling prices of Common Stock on the date as of which such value is being
determined.
"Outside Director" shall mean any Director of the Corporation who has
never been an employee or officer of the Corporation or a Subsidiary.
"Participant" shall have the meaning assigned to such term in Section
3.
"Subsidiary" shall mean any corporation which at the time qualifies as
a subsidiary of the Corporation under the definition of "subsidiary corporation"
in Section 425(f) of the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Unit" shall mean a unit which is equal in value to the Fair Market
Value of a share of Common Stock.
SECTION 3. Participants. Effective as of May 21, 1996, the term
"Participant" shall be limited to those Outside Directors who were participating
in the Plan and on such date, the Plan shall be frozen, and no further amounts
shall accrue in respect of any Participant, except as set forth in Section 4(b).
1
SECTION 4. Compensation. (a) Commencing upon a Participant's
retirement, resignation or removal from service as a Director on the Board, or
any failure of a Participant to be reelected as a Director after accepting a
nomination for election, in each case (i) after attaining the age of 70 (or such
other age as may be established from time to time by the Board as the retirement
age), (ii) with the consent of the Board or (iii) because of disability or
health reasons, the Corporation shall pay on May 1 of each year (or on such
other date or dates as the Administrator shall so designate in his sole
discretion) during the Participant's lifetime to each Participant an amount
equal to the dollar value of the annual retainer fee (such dollar value to be
determined by the Administrator from time to time) payable to Directors of the
Corporation at the date the Participant retires, resigns, or is removed from
service as a Director or is not reelected as a Director after accepting a
nomination for election, which amount shall be not less than $25,000 for
Participants ceasing to serve the Corporation in the capacity of Director on or
after January 1, 1990; provided, however, such amount shall be reduced for each
Participant with fewer than ten years of service to the Board as an Outside
Director by ten percent for each year, or part thereof, less than ten years of
service. In calculating the number of years a Participant has served on the
Board, all years served prior to the effectiveness of this Plan and for
Participants who were Directors of Manufacturers Hanover Corporation or who were
Directors of The Chase Manhattan Corporation at the time of its merger with
Chemical Banking Corporation, all years such Participants had served as
directors of such corporation prior to becoming Directors of the Corporation.
shall be included in the calculation.
(b) For purposes of determining the amount payable hereunder to any
Participant retiring, resigning or being removed on or after May 20, 1996, the
following rules shall apply:
(i) any Participant retiring, resigning or being removed on
May 20, 1996, shall be permitted to elect to (A) receive the compensation set
forth in Section 4(a), except that the age specified in Section 4(a) (i) shall
be 65 and such Participant shall be deemed to have performed ten years of
service to the Board as an Outside Director (regardless of his or her actual
years of service); or (B) be treated in the manner set forth in Section 4(b)
(ii) below;
(ii) any Participant retiring, resigning, being removed or
otherwise terminating service as an Outside Director after May 20, 1996 shall,
in lieu of the compensation payable under this Section 4(a), receive an amount
determined pursuant to Section 5; provided that in determining the amount to be
initially credited to the Participant's account under Section 5, each
Participant shall be considered to have performed ten years of service to the
Board as an Outside Director (regardless of his or her actual years of service).
SECTION 5. Deferred Account. (a) The compensation otherwise payable
under Section 4(a) to Participants described in Section 4(b) (ii) or electing to
be so treated under the provisions of Section 4(b) (i) shall be converted to a
present value dollar amount, based on actuarial assumptions satisfactory to the
Administrator, and such dollar amount converted into a number of Units by
dividing such dollar amount by
2
the average of the Fair Market Value of the Common Stock during the period
commencing July 18, 1996 and ending August 5, 1996, inclusive.
(b) The amount so determined pursuant to Section 5(a) shall be treated as
deferred in accordance with Appendix A hereto.
SECTION 6. Nontransferability. No amount due to any Participant shall
be assignable or transferable by a Participant, except by will or the laws of
descent and distribution, and no right or interest of any Participant shall be
subject to any lien, obligation or liability. Any attempted assignment or
alienation of payments hereunder shall be void and of no force or effect.
SECTION 7. Amendment. The Board may amend, suspend or terminate the
Plan or any portion hereof at any time; provided, however, no right under the
Plan of any Participant (including the right to receive future compensation in
specified amounts) immediately prior to any amendment of the Plan shall in any
way be amended, modified, suspended or terminated without such Participant's
prior written consent.
SECTION 8. Withholding. The Corporation shall have the right to deduct
from any and all amounts paid to any Participant under this Plan any taxes
required by law to be withheld therefrom.
SECTION 9. Administration. The Plan shall be administered by the
Administrator who shall have the authority to adopt rules and regulations for
carrying out the Plan, and who shall interpret, construe and implement the
provisions of the Plan.
SECTION 10. Participant's Rights Unsecured. The right of any
Participant to receive future payments under the provisions of the Plan shall be
an unsecured claim against the general assets of the Corporation.
SECTION 11. Effective Date. This Plan became effective on May 13, 1988.
3
Appendix A
SECTION A1. Participants' Account Balances. The Corporation shall maintain an
individual book account under the Plan for each Participant having a deferred
account. Each Participant shall initially have credited to his or her account
the number of Units calculated in respect of such Participant pursuant to
Section 5 hereof. Such account shall continue to be expressed in Units until an
Outside Director has ceased to render services to the Corporation as an Outside
Director. Any dividends paid on Common Stock shall be credited to a
Participant's account in respect of each Unit and deemed to be reinvested in
additional Units based on the Fair Market Value of Common Stock on the dividend
payment date. In addition, the number of Units allocated to a Participant's
account shall be adjusted to reflect stock dividends, splits and
reclassifications, and similar transactions affecting the value of Common Stock.
At the time that the Participant's services as an Outside Director cease,
subject to Section 5 hereof, the account balance will, until such time as it is
paid to the Participant in accordance with the Participant's payment elections,
be allocated among the hypothetical investments permitted under the Plan for
Participants who have ceased to render service as an Outside Director, as such
allocation may be elected by the Participant.
SECTION A2. Payment Elections. (a) General Provisions. In connection with the
commencement of participation in this Plan, each Participant shall make an
election (the "Payment Election") concerning the timing and form of distribution
of the amounts credited to his or her Plan account. Any payment from the Plan
shall commence following termination of the Participant's services to the
Corporation as an Outside Director, but in no event prior to one year after
receipt by the Corporation of the Outside Director's initial Payment Election.
The forms of benefit available under the Plan shall be a lump sum payment or
quarterly, semi-annual or annual installments over a period not to exceed 15
years from the earliest date the director may commence receiving payments
hereunder.
(b) Special Rules. (i) Subsequent Payment Elections may be made by a
Participant, which shall supersede the initial Payment Election, but any such
subsequent Payment Election shall not be valid unless it is made prior to May of
the calendar year preceding the calendar year in which payments to the Director
hereunder are otherwise due to commence.
(ii) If a Participant has elected to receive installment payments of the
amount in his or her account, the Participant may, at the Participant's option,
elect to allocate the account, on or after the date on which he or she ceases to
perform services as an Outside Director, among such forms of hypothetical
investment as may be made available hereunder by the Administrator with
reference to the hypothetical investments made available under the Deferred
Compensation Plan for Non-Employee Directors of The Chase Manhattan Corporation
(the "Deferred Compensation Plan"). Reallocations may be made among hypothetical
investments on the same basis as is permitted under the Deferred Compensation
Plan.
4
SECTION A3. Payments to a Deceased Participant's Estate. (a) In the event of a
Participant's death before the balance of his or her account is fully paid,
payment of the balance of the Participant's account shall then be made to his or
her estate in accordance with the manner selected by the Participant prior to
death, which manner shall provide that: (i) payment shall be made to the
Participant's estate in the same manner as provided with respect to the payments
to the Participant or (ii) the balance of the Participant's account shall be
determined as soon as practicable following his or her death and this amount
shall be paid in a single payment to the Participant's estate as soon as
reasonably practicable thereafter. In the event no election has been made,
payment shall be made in accordance with clause (ii) of the preceding sentence.
(b) In the event of a Participant's death before the balance of his or
her account is fully paid to the estate in installments, the Administrator may,
upon consideration of the application of the duly appointed administrator or
executor of the Participant's estate, direct that the balance of the
Participant's account be paid to the estate in a single payment. The payment
shall be made at the time specified by the Administrator.
5
Exhibit 10.3
Updated for name changes and JPMorgan Merger
DEFERRED COMPENSATION PROGRAM OF
JPMORGAN CHASE & CO.
AND PARTICIPATING COMPANIES
PREAMBLE
The Deferred Compensation Program permits annual deferrals by
certain key officers of all or a portion of their incentive compensation under
the Voluntary Bonus Deferral Plan. The Program permits deferrals of Eligible
Compensation under the 401(k) Excess Savings Plan when certain plan or legal
limits reduce contributions that would be otherwise made by officers and
employees pursuant to the JPMorgan Chase 401(k) Savings Plan, a qualified plan
and also permits additional deferrals for commissioned paid employees under a
Voluntary Compensation Deferral Plan. At the determination of the Administrator,
the Program can include other deferral features.
The Program is a successor to the Deferred Compensation Program of
The Chase Manhattan Corporation and Participating Companies, the Deferred
Compensation Plan of Chemical Bank and Participating Companies, the
Thrift-Incentive portion of TRA 86 Supplemental Benefit Plan of The Chase
Manhattan Bank, N.A. and the J.P. Morgan Deferred IC Program. Balances in each
reference plan are subject to the terms of this Program except as otherwise
provided herein.
Additionally, the Supplemental Executive Retirement Plan of The
Chase Manhattan Bank, N.A. was terminated as of December 31, 1996. The
Supplemental Retirement Accounts, as well as the Pre-1988 frozen annuity which
was converted to a lump sum, became part of a Participant's account hereunder.
The terms and conditions of this Program govern any amount
previously deferred thereunder. This Program became effective January 1, 1996.
2
The Program represents an unsecured, unfunded promise to make
payments in the future.
ARTICLE I
DEFINITIONS
The following are defined terms wherever they appear in the Program.
1.1 "Additional Credit" shall mean the amount specified in Section
3.2(d).
1.2 "Administrator" shall mean the individual holding the title
"Director Human Resources" of the Corporation, who shall be responsible for
those functions assigned to him under the Plan; provided that the term
"Administrator" shall mean the Committee with respect to any discretionary act
hereunder which affects any person subject to Section 16(a) of the Securities
Exchange Act of 1934, as amended.
1.3 "Bank" shall mean JPMorgan Chase Bank NA.
1.4 "Beneficiary" shall mean the persons designated by a
Participant, on a form provided by the Administrator, to receive in the event of
his/her death the value of any undistributed account balance under this Program.
Any designation shall include amounts deferred under the 401(k) Excess Savings
Plan, the Voluntary Bonus Deferral Plan and the Voluntary Compensation Deferral
Plan and amounts transferred to an account under this Program from the JPMorgan
Chase Excess Retirement Plan (formerly the Excess Retirement Plan of The Chase
Manhattan Corporation) and such other amounts deferred under such other plans or
arrangements as may be specified by the Administrator.
1.5 "Benefits Eligible Compensation" shall mean salary, commissions,
draw and production overrides deferred under the Voluntary Compensation Deferral
Plan.
1.6 "Board of Directors" shall mean the Board of Directors of the
Corporation; provided that any action taken by a duly authorized committee of
the Board of
3
Directors (including any action described in Section 5.4) within the scope of
authority delegated to it by the Board shall be considered an action of the
Board of Directors for the purpose of this Plan.
1.7 "Chemical Plan" shall mean the Deferred Compensation Plan of
Chemical Banking Corporation and Participating Companies as in effect on
December 31, 1996.
1.8 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.9 "Committee" shall mean the Compensation and Management
Development Committee of the Board of Directors.
1.10 "Corporation" shall mean J.P. Morgan Chase & Co.
1.11 "Deferral Percentage" shall mean the percentage elected by an
Eligible Employee described in Section 2.1(d) on an Election Form under the
Qualified Plan; provided that no Deferral Percentage can be elected unless the
individual has elected a Pre-Tax Contribution rate of 5% under the Qualified
Plan; provided further that the Deferral Percentage shall not exceed 10% for
period commencing January 1, 2000 and ending December 31, 2001 and 15%
commencing January 1, 2002.
1.12 "DSIB" shall mean the hypothetical investment choice described
in Section 3.3(b).
1.13 "Election Form" shall mean the method specified by the
Administrator to participate in the Program and to make deferral and
hypothetical investment elections under the Program. Such methods may include,
but not be limited to, interactive voice response, internet, and other
electronic means.
1.14 "Eligible Compensation" shall have the meaning specified in the
Qualified Plan.
1.15 "Eligible Employee" shall mean an Employee described in Section
2.1.
4
1.16 "Employee" shall mean an individual whose employment
classification is that of a regular full-time employee and who is on a United
States payroll of a Participating Company.
1.17 "Former Participant" shall mean a Participant whose employment
has terminated and whose account balance under the Program has not been fully
distributed.
1.18 "J.P. Morgan Deferred IC Program" shall mean the incentive
compensation program providing for deferral of bonuses sponsored by J.P. Morgan
& Co. Incorporated, the balances of which are subject to the terms of this
Program.
1.19 "IPA" shall mean the hypothetical investment choice described
in Section 3.3.(b).
1.20 "401(k) Excess Savings Plan" shall mean that feature of the
Program allowing deferrals of Eligible Compensation on a per pay period basis.
1.21 "Legal Limit" shall mean the dollar limitation imposed by
Section 401(a)(17) of the Code on the amount of Eligible Compensation taken into
account in computing benefits under the Qualified Plan for a calendar year or
the limits imposed under Section 402(g) and Section 415 of the Code. In
addition, if so specified by the Administrator for any calendar year, "Legal
Limit" shall also mean any reduction in Pre-Tax Contributions or matching
contributions under the Qualified Plan because of the expected application of
Section 401(k)(3) of the Code or Section 401(m)(3) of the Code.
1.22 "Participant" shall mean each Eligible Employee of a
Participating Company described in Section 2.1 who participates in the Program
in accordance with the terms and conditions applicable to a deferral arrangement
offered under the Program.
1.23 "Participating Company" shall mean: (a) the Corporation and (b)
each Related Company which has been authorized by the Administrator to
participate in the Program and has agreed to comply with the provisions of the
Program.
5
1.24 "Pre-Tax Contributions" shall have the meaning specified in the
Qualified Plan.
1.25 "Program" shall mean the Deferred Compensation Program of The
Chase Manhattan Corporation and Participating Companies as in effect from time
to time, which Program includes the 401(k) Excess Savings Plan, Voluntary Bonus
Deferral Plan and Voluntary Compensation Deferral Plan and such other deferral
features or plans as the Administrator may specify
1.26 "Qualified Plan" shall mean the JPMorgan Chase 401(k) Savings
Plan.
1.27 "Related Company" shall mean a corporation of which more than
51% of the combined voting power of all classes of stock entitled to vote or
equity interest is owned directly or indirectly by the Corporation or a
partnership, joint venture or other unincorporated entity of which more than 51%
of the capital, equity or profits interest is owned directly or indirectly by
the Corporation.
1.28 "SERP Amounts" shall mean the amounts described in Sections
6.2(a)(i) and (ii) plus the investment experience thereon.
1.29 "Supplemental Executive Retirement Plan" shall mean the
Supplemental Executive Retirement Plan of The Chase Manhattan Bank, N.A.
1.30 "Total and Permanent Disability" or "Totally Disabled" shall
mean a disability that, in the determination of the Administrator, would qualify
an individual for benefits under a long term disability program maintained by
the Corporation or a Related Company.
1.31 "TRA Supplemental Retirement Plan" shall mean the TRA 86
Supplemental Retirement Plan of The Chase Manhattan Bank, N.A.
1.32 "Valuation Date" shall mean the close of business on the last
business day of each calendar month for any period prior to July 1, 1999 and
shall have the meaning set forth in Qualified Plan for periods on or after July
1, 1999; provided that the Administrator may specify in his/her sole discretion
a different Valuation Date or Dates for any investment choice
6
provided under the Program and may apply such different Valuation Dates on an
individual by individual basis.
1.33 "Voluntary Bonus Deferral Plan" shall mean that feature of the
Program allowing deferral of annual incentive compensation payable in the form
of a bonus.
1.34 "Voluntary Compensation Deferral Plan" shall mean that feature
of the Program permitting the deferral of Benefits Eligible Compensation on a
per pay period basis for commissioned employees.
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY. The Employees who shall be eligible to participate
in the Program are those officers and other key employees of a Participating
Company who:
(a) under the Voluntary Bonus Deferral Plan:
(i) are participating in a cash incentive plan permitting
deferral of cash bonuses; and
(ii) have a position or salary grade with a Participating
Company that has been designated by the Administrator as
eligible for participation in the Plan; or
(iii) have been specifically authorized by the Administrator
to participate in the Plan.
(b) under the Voluntary Compensation Deferral Plan:
(i) earned Benefit Eligible Compensation in a prior calendar
year in excess of the Legal Limit for the period
specified by the Administrator; and
7
(ii) have a position or salary grade with a Participating
Company that has been designated by Administrator as
eligible for participation in the Plan.
(c) under the 401(k) Excess Savings Plan for the period of January
1, 1997 through December 31, 1999:
(i) were participating in the Qualified Plan electing to
make Pre-Tax Contributions during a calendar year; and
(ii) were subject to the Legal Limit; and
(iii) were described in either Section 2.1(a)(ii) or (iii).
(d) under the 401(k) Excess Savings Plan after December 31, 1999:
(i) are not permitted by the terms of the Qualified Plan to
make Pre-Tax Contributions during a calendar year in
excess of a 5 percent deferral rate, and
(ii) are designated as eligible to participate in the 401(k)
Excess Savings Plan by the Administrator.
2.2 DEFERRAL ELECTIONS.
(a) Voluntary Bonus Deferral Plan. An Eligible Employee may annually
elect to defer incentive compensation and participate in the Voluntary Bonus
Deferral Plan by delivering a properly completed Election Form to the
Administrator; and, upon making such irrevocable election to defer incentive
compensation, such Eligible Employee shall be a Participant.
(b) Voluntary Compensation Deferral Plan. An Eligible Employee may
annually elect to defer Benefits Eligible Compensation up to the maximum
percentage specified by the Administrator commencing with the first pay period
in a calendar year by delivering a
8
properly completed Election Form to the Administrator. Upon making such
irrevocable election by delivering the Election Form, such Eligible Employee
shall be a Participant.
(c) 401(k) Excess Savings Plan. (i) Effective as of December 31,
1999, by electing a Deferral Percentage on an Election Form (or continuing an
election of such a percentage), an Eligible Employee thereby elects to have an
amount each per pay period deferred under the 401(k) Excess Savings Plan.
(ii) An Eligible Employee will automatically become a Participant
and will have amounts deferred under the 401(k) Excess Savings Plan after the
applicable Legal Limit is reached under the Qualified Plan based on the
percentage election made for the Qualified Plan.
(iii) Prior to December 31, 1999, an Eligible Employee was required
to elect to defer Eligible Compensation under the 401(k) Excess Savings Plan
(after the applicable Legal Limit was reached for the calendar year under the
Qualified Plan) by delivering a properly completed Election Form to the
Administrator.
2.3 TIMING AND EFFECTIVE DATE OF ELECTIONS.
(a) Any deferral election under the Voluntary Bonus Deferral
Plan shall be made at least three months prior to the end of the calendar year
to which the incentive compensation relates. Such election shall be irrevocable
following the end of the election period and shall be effective with respect to
any incentive compensation to be paid in the calendar year following the date of
the election.
(b) Any deferral election under the Voluntary Compensation
Deferral Plan shall be made at least three months prior to the beginning of the
calendar year to which the election relates. Such election shall be irrevocable
following the end of the election period and shall be effective for Benefit
Eligible Compensation to be received in the calendar year following the date of
the election.
(c) Any deferral election under the 401(k) Excess Savings Plan
and Deferral Percentage shall be made at the same time as any election under the
Qualified Plan
9
and shall be effective at the same time as would an election under the Qualified
Plan be effective.
(d) Notwithstanding the dates specified in this Section 2.3,
the Administrator may prescribe an earlier or later date by which Participant
must elect to defer compensation.
(e) Under no circumstances may a Participant at any time defer
compensation to which the Participant has attained a legally enforceable right
to receive.
2.4 TERMINATION OF 401(K) EXCESS SAVINGS ELECTION. An election to
defer Eligible Compensation under the 401(k) Excess Savings Plan will terminate
on the earlier of (i) termination of employment, (ii) ineligibility to
participate in the Qualified Plan, or (iii) filing of an election by such date
as may be specified by the Administrator to cease deferrals.
2.5 TERMINATION OF A VOLUNTARY COMPENSATION DEFERRAL PLAN ELECTIONS.
An election to defer Benefits Eligible Compensation under the Voluntary
Compensation Deferral Plan will terminate on the earlier of (i) termination of
employment, (ii) the end of the calendar year to which the election relates, or
(iii) such earlier date as the Administrator may specify.
ARTICLE III
COMPENSATION DEFERRED
3.1 ACCOUNT.
(a) With respect to deferrals under this Program, a bookkeeping
account shall be established for each Participant. Under the Program, amounts
deferred by a Participant, along with hypothetical income or losses on such
amounts (including Additional Credits, if any, with respect to deferrals under
the 401(k) Excess Savings Plan), shall be credited or debited to the account.
10
(b) For purposes of hypothetical investments under Section 3.3, for
periods prior to calendar year 2000, incentive compensation deferred with
respect to a calendar year was considered to be invested as of the first day of
the month immediately following the month in which incentive compensation would
otherwise have been payable. For periods after calendar year 2000, incentive
compensation deferred with respect to a calendar year shall be considered to be
invested as soon as administratively practical following the date on which such
compensation would otherwise have been payable.
(c) For purposes of hypothetical investments under Section 3.3,
deferred Eligible Compensation or Benefit Eligible
Compensation shall be considered to be invested as soon as administratively
practical following the date on which such compensation would otherwise have
been payable.
3.2 AMOUNT OF DEFERRAL.
(a) Voluntary Bonus Deferral Plan. Under the Voluntary Bonus
Deferral Plan, a Participant shall have deferred all or a portion, by percentage
or by dollar amount (as specified on an Election Form), of any bonus or other
incentive award (other than any award payable as shares of common stock of the
Corporation) subject to a minimum of $5,000 that would otherwise be payable in
the calendar year following the election. For these purposes, bonus or incentive
compensation means only compensation otherwise payable in cash to a Participant
for services as an Employee of the Participating Company.
(b) Voluntary Compensation Deferral Plan. Under the Voluntary
Compensation Deferral Plan, a Participant shall have deferred for each pay
period an amount equal to the product of the percentage elected on an Election
Form and Benefit Eligible Compensation (otherwise payable for such pay period).
(c) 401(k) Excess Savings Plan. For calendar year 2000 and
following, a Participant shall have deferred from Eligible Compensation for each
pay period an amount equal to the product of the Deferral Percentage (as in
effect from time to time pursuant to an Election Form) and Eligible
Compensation. In addition, a Participant shall have deferred from Eligible
11
Compensation, in each pay period following the date that the Pre-Tax
Contributions under the Qualified Plan ceased because of the application of the
Legal Limit, an amount equal to the product of the (I) rate of Pre-Tax
Contribution under the Qualified Plan (as in effect) and (ii) Eligible
Compensation for any remaining pay periods.
(d) Additional Credit. To the extent that Eligible Compensation is
being deferred under the 401(k) Excess Savings Plan because of the application
of the Legal Limit, there shall be credited to an individual's account an amount
equal to the product of Eligible Compensation for any pay period remaining in
the calendar year and the lesser of (i) the maximum employer matching
contribution rate under the Qualified Plan or (ii) the rate elected under the
Qualified Plan prior to application of the Legal Limit, unless the Participant
elects subsequently a lower percentage. Such Additional Credit shall vest in
accordance with the schedule set forth in the Qualified Plan. Notwithstanding
the foregoing or anything hereinto the contrary, no Additional Credits will
apply to the accounts of those Participants whose Eligible Compensation in whole
or part consist of commissions, draw or production overrides or to Participants
employed in one of the wholesale businesses of a Participating Company.
(e) Not in Excess. The amount credited to a Participant's account
under Section 3.2(c) and (d) along with the amount credited to such Participant
under the Qualified Plan shall not exceed the amount that would have been
contributed for the Participant but for the application of the Legal Limit.
3.3 HYPOTHETICAL INVESTMENT.
(a) Subject to the provisions of Section 3.4, amounts credited to an
account shall be deemed to be invested, at the Participant's direction, in one
of the investment vehicles offered under the Qualified Plan and shall be
credited with the same rates of returns as provided by the Qualified Plan for
such funds (except for the Chase Common Stock Fund under the Qualified Plan).
Unless otherwise specified by the Administrator, hypothetical investment funds
shall change as the investment vehicle under the Qualified Plan change and shall
be subject to the same charges and expenses as provided for in the Qualified
Plan.
12
(b) In addition to hypothetical investment funds in (a), the Program
provides
(i) Deferred Supplemental Income Benefit ("DSIB"). Amounts treated
as invested in DSIB shall earn the rate of return specified by
the Administrator for that year and future years up to the
January 1, immediately prior to the date of distribution of
the first installment of the DSIB; provided that, however,
with respect to deferrals during a calendar year under the
410(k) Excess Savings Plan or transfers/reallocations of
deferred incentive compensation, the amount designated as
invested in DSIB shall receive the rate specified for the next
succeeding calendar year, and such mid-year deferral or
reallocation shall receive the rate of return of the Stable
Value investment choice until treated as if invested in DSIB.
The DSIB rate of return shall not be applicable if employment
of a Participant terminates with less than five years of
service, or before age 65 with respect to deferrals made
within 12 month of termination of employment. In such
circumstances, that portion of the account shall receive, in
lieu of the DSIB rate, the rate provided by the Stable Value
investment choice for each year deemed invested in DSIB. The
Administrator has the discretion to impose minimum and maximum
allocations to DSIB. A hypothetical investment election in the
DSIB shall only be effective if the Participant cooperates
with the reasonable requests of the Administrator, including
the completion of an insurance application/consent and a
physical; provided further should a Participant revoke his/her
consent to insurance, then no benefit shall be payable under
DISB.
(ii) Inflation-Protected Annuity Benefit ("IPA"). Effective July 1,
2003, the IPA was discontinued for future investments and
amounts pending IPA were treated as invested in the Stable
Value investment choice as of June 30, 2003 unless the
Participant otherwise elected. Amounts treated as invested in
IPA shall earn (a) a rate of return specified by the
13
Administrator for that year and future years, and (b) an
annual inflation adjustment return each year based on changes
in the non-seasonally adjusted Consumer Price Index for Urban
Consumers and year end account balance allocated to IPA, in
either case up to the January 1, immediately prior to the date
of distribution of the first installment of the IPA; provided
that however, with respect to deferrals during a calendar year
under the Excess 410(k) Plan or reallocations of deferred
incentive compensation, the amount designated as invested in
IPA shall receive the rate specified for the next succeeding
calendar year, and such mid-year deferral or reallocation
shall receive the rate of return of the Stable Value
investment choice until treated as if invested in IPA. The
Administrator has the discretion to impose minimum and maximum
allocations to IPA.
(iii) NASDAQ 100 Investment Choice. Amounts treated as invested in
the NASDAQ 100 investment choice shall earn a rate of return
that approximates the rate of return published for the NASDAQ
100 Index .
(c) Amounts treated as invested in the common stock investment
choice (including dividend equivalents) shall be treated as if invested in fixed
shares of common stock of the Corporation ("Common Stock investment choice");
and for valuation purposes, the New York Stock Exchange closing market price for
such stock on the date of any such deemed investment of compensation or dividend
equivalents shall be used.
(d) The Administrator may, in his sole discretion, provide to
classes of Participants and Former Participants, as he shall specify, additional
hypothetical investments currently a Private Equity investment choice and
Multi-Strategy investment choice. With respect to amounts treated as if invested
in such additional hypothetical investments, the Administrator may specify (i)
restrictions on transfers and re-allocations and (ii) a distribution schedule
different from that specified herein; provided that the Administrator may change
such
14
restrictions and distribution schedule, in his discretion, on 30 days
advance notice to Participants and Former Participants.
3.4 LIMITATIONS ON HYPOTHETICAL INVESTMENTS. Notwithstanding the
provisions of Section 3.3, the Administrator may, in his sole discretion
(i) replace any investment vehicle with a deemed investment
vehicle having comparable investments and investment objectives and
risks substantially similar to the vehicle being replaced, or
(ii) discontinue such vehicle as an alternative for deemed
investment hereunder and provide each affected Participant the
opportunity,
without limiting or otherwise impairing any other right of the Participant under
this Article III regarding changes of investment directions, to redirect the
allocation of the value of such Participant's account that had been deemed
invested in such discontinued investment fund among the remaining deemed
investment vehicles or, in the discretion of the Administrator, into another
deemed investment vehicle established by the Administrator. See Appendix I with
respect to the exercise of the Administrator's discretion for changes to funds
and allocation of existing balances under this Program and the J.P. Morgan
Deferred IC Program as of January 1, 2002. See Appendix II for changes effective
June 30, 2003.
3.5 HYPOTHETICAL INVESTMENT.
(a) As of each Valuation Date, the value of each Participant's
account shall be determined by reference to the value of the hypothetical
investment choice for the particular fund or funds under the Qualified Plan (or,
if applicable, the published rate of return for the NASDAQ Index, the Common
Stock or such other fund as may be made available) in which the portion of the
account is deemed invested plus any income or loss on that hypothetical
investment choice. The amounts credited to DSIB and IAP shall receive the rate
specified at the date of the deemed investment.
15
(b) Except as provided in Section 3.4, amounts for which no
investment election has been made shall be treated as if
invested in the Stable Value Fund, until such election is made.
3.6 ALLOCATION OF HYPOTHETICAL INVESTMENTS; REALLOCATION OF
HYPOTHETICAL INVESTMENTS.
(a) A Participant may elect the manner at such times, as the
Administrator may specify, in which deferrals of future incentive compensation,
Benefits Eligible Compensation or Eligible Compensation, are deemed allocated to
one or more of the hypothetical investments described in Section 3.3.
(b) A Participant or Former Participant may at such times, as the
Administrator may specify, also reallocate/transfer among the hypothetical
investments amounts previously credited to his account on a Valuation Date;
provided that a Participant or Former Participant may not reallocate any amounts
treated as if invested in the Corporation's common stock or DSIB to any other
hypothetical investment choice; provided, further, that for periods prior to
July 1, 1999, a request for reallocation must have been received before the
fifth business date preceding a Valuation Date for it to be effective for that
Valuation Date.
(c) The Administrator in his/her sole discretion may limit transfers
and reallocation among funds under this Program in such manner as he/she may
deem appropriate. The Administrator may exercise such authority on a Program
wide basis or on an individual by individual basis.
3.7 STATEMENT OF ACCOUNT. A statement shall be provided to each
Participant or Former Participant with respect to the amount of his account at
least once a calendar year.
16
ARTICLE IV
PAYMENT OF DEFERRED COMPENSATION
4.1 PAYMENT OF DEFERRED COMPENSATION.
(a) Termination of Employment. Except as provided in subsection (b),
|
upon termination of the Participant's employment with the Corporation or a
Related Company, the value of the account of such individual shall be
distributed to such individual during the month of January or July following the
date of such termination of employment in either installments or a lump sum, as
the Administrator may specify; provided that if the Participant has made a
timely election as solely determined by the Administrator (but always prior to
the calendar year before a payment is due), the Participant shall receive the
value of the account in annual installments or a lump sum in such calendar as
selected by the Participant subject to the consent of the Administrator. The
maximum installment election cannot exceed 15 annual installments, and the
account must be distributed by the date that a Participant attains age 80. An
installment amount shall be based on the balance of an account divided by the
number of installments remaining to be made.
(b) J.P. Morgan Deferred IC Program. Notwithstanding (a) above,
Participants in the J.P. Morgan Deferred IC Program whose employment terminated
on or before December 31, 2001 or who were receiving as of October 31, 2001
distributions from such Program remain subject to the terms of the J.P. Morgan
Deferred IC Program. In the case of other Participants in the J.P. Morgan
Deferred IC Program, their balances became subject to the terms and conditions
of this Program effective January 1, 2002.
(c) Total and Permanent Disability. Upon a termination of employment
due to a Total and Permanent Disability of a Participant, the Administrator may,
in his or her sole discretion, distribute the account under the Program
distributed pursuant to Section 4.1(a).
17
(d) In-Service Withdrawal. A Participant at the date of an election
to participate with respect to a deferral of incentive compensation (or with
respect to the Eligible Compensation or Benefits Eligible Compensation Plan on
the date specified by the Administrator for deferrals in the next succeeding
year) may elect a specific year during active employment in which to begin
receiving the portion of the Account representing such deferred incentive
compensation; provided that such date is at least two years after the deferred
amount would have been paid if it were not deferred; provided further that such
election shall not apply to DSIB, IPA or other investment choices as specified
by the Administrator.
(e) Shares of Common Stock, DSIB and IPA. (i) The portion of an
account treated as if invested in the Common Stock investment choice shall be
distributable solely in shares of the common stock of the Corporation and shall
be distributed as set forth in Section 4.1(a), (b) or (c) above.
(ii) The portion of the account treated as if invested in the DSIB
shall be paid in 15 equal, annual installments starting in January of the year
following termination of employment, unless Administrator in his/her sole
discretion specifies a later date. DSIB payments shall not commence prior to
termination of employment.
(iii) The portion of the account treated as if invested in the IPA
shall be paid in 15 annual installments, calculated as a 15 year annuitized
amount based on the specified interest rate for the year of deferral into IPA.
Installments payments (with the exception of the first installment) shall
receive an annual inflation adjustment as described Section 3.3(b)(iii).
Distributions shall commence in January of the year following termination of
employment, unless the Administrator in his/her sole discretion specifies a
later date. IPA payments shall not commence prior to termination of employment.
(e) Shares Available for Issuance. An aggregate of 500,000 shares of
authorized but unissued shares of common stock of the Corporation has been
reserved for issuance pursuant to this Program, as subject to adjustment
provided for in Section 5.8.
18
(f) Valuation. For purposes of distribution, the balance of an
account shall be valued as of the Valuation Date immediately preceding the date
that the balance of such account or the particular installment thereof is to be
distributed.
4.2 FINANCIAL EMERGENCY PAYMENTS. Notwithstanding any other
provisions of this Plan, if the Administrator determines, after consideration of
an application of a Participant or Former Participant, such individual has a
financial emergency of such a substantial nature and beyond the individual's
control that a contemporaneous payment of incentive compensation previously
deferred under this Plan is warranted, the Administrator may, in his sole and
absolute discretion, direct that all or a portion of the balance of the account
be paid or distributed to the Participant or Former Participant in such manner
and at such time as the Administrator shall specify.
4.3 PAYMENTS TO A DECEASED PARTICIPANT'S BENEFICIARY. In the event
of a death of a Participant or Former Participant before the value of the
account under the Program has been fully distributed, the value of the account
of such individual shall be distributed in a lump sum to the individual's
Beneficiary (or his/her estate in the event that no Beneficiary, including a
secondary/contingent Beneficiary shall survive the Participant or Former
Participant) as soon as practicable thereafter after receipt of all
documentation. Shares of the common stock of the Corporation shall be
distributed with respect to any portion of the account treated as if invested in
the Corporation's common stock. Notwithstanding the foregoing, any compensation
treated as if invested in the DSIB or IPA shall be distributed to the named
Beneficiary (i) if prior to the commencement of DSIB payments, in 15 annual
installments in an amount specified by the Administrator for the calendar year
in which the deferral occurred; or (ii) if after commencement of DSIB or IPA
payments, annual payments in the same amount as the Participant received until
an aggregate 15 payments have been received by the Participant and his
Beneficiary.
19
ARTICLE V
GENERAL PROVISIONS
5.1 PARTICIPANT'S RIGHTS UNSECURED. The right of any Participant or
Former Participant to receive future payments under the provisions of the
Program shall be an unsecured claim against the general assets of (i) the Bank
if the Participating Company employing the Participant at the time that his/her
compensation is deferred was a bank or a bank subsidiary, or (ii) the
Corporation, if the Participating Company employing the Participant at the time
his/her compensation is deferred was not a bank or a bank subsidiary. Deferrals
under the Chemical Plan prior to January 1, 1997 shall be allocated to the Bank
or Corporation depending upon the employer of the Employee on January 1, 1997.
No Participating Company (other than the Corporation or Bank) is liable for
payment of benefits to its Employees under the Plan.
5.2 ASSIGNABILITY. No right to receive payments hereunder shall be
transferable or assignable by a Participant or Former Participant except by will
or by the laws of descent and distribution or by a court of competent
jurisdiction. Any other attempted assignment or alienation of payments hereunder
shall be void and of no force or effect.
5.3 ADMINISTRATION. Except as otherwise provided herein, the Plan
shall be administered by the Administrator who shall have the authority to adopt
rules and regulations for carrying out the provisions of the Plan, who shall
interpret, construe and implement the provisions of the Plan, and whose
determinations shall be conclusive and binding. In carrying out his
responsibilities hereunder, the Administrator may appoint such delegates as
he/she deems appropriate. Notwithstanding anything herein to the contrary, the
Administrator shall have the absolute right to delay any payments for a
reasonable period following the calendar year of termination of employment.
5.4 AMENDMENT. The Plan may at any time or from time to time be
amended, modified or terminated by the Board of Directors or the Administrator;
provided that no amendment, modification, or termination shall, without the
consent of the Participant, reduce the value of Participant's account at that
time; provided further that as to persons subject to
20
Section 16(a) of the Securities Exchange Act of 1934, as amended, no provision
hereunder which relates to the Chase Common investment choice may be amended at
less than six months intervals, and such amendment shall be subject to
stockholder approval if required by SEC Rule 16b-3.
5.5 LEGAL OPINIONS. The Administrator may consult with legal
counsel, who may be counsel for the Corporation or other counsel, with respect
to his obligations or duties hereunder, or with respect to any action,
proceeding or any question at law, and shall not be liable with respect to any
action taken, or omitted, by him in good faith pursuant to the advice of such
counsel.
5.6 LIABILITY. Any decision made or action taken by the Board of
Directors, the Committee, the Administrator or the Corporation, arising out of,
or in connection with, the construction, administration, interpretation and
effect of the Program shall be within their absolute discretion, and will be
conclusive and binding on all parties. Neither the Administrator nor a member of
the Board of Directors of the Corporation or the Committee of the Corporation
shall be liable for any act or action hereunder, whether of omission or
commission, by any other member or employee or by any agent to whom duties in
connection with the administration of the Plan have been delegated or, except in
circumstances involving bad faith, for anything done or omitted to be done in
connection with this Plan.
5.7 CORPORATE REORGANIZATION. In the event that as of any date a
corporation or unincorporated entity ceases to meet the definition of Related
Company, such corporation or entity shall cease to be a Participating Employer
and its employees shall cease to be Participants under the Plan as of the
Valuation Date coincident with or immediately following such date, and this Plan
shall be treated as though a separate plan for the benefit of its employees who
were Participants in the Plan to govern the balances in an account under the
Program as of such Valuation Date.
5.8 ADJUSTMENTS. The maximum aggregate number of shares of common
stock of the Corporation to be issued under this Plan shall be proportionately
adjusted for any increase or decrease in the number of issued shares of common
stock of the Corporation
21
resulting from a subdivision or consolidation of such shares of common stock or
other similar capital adjustment, or the payment of a stock dividend (but only
if such stock dividend is 5% or more), or other increases or decreases in such
shares of common stock effected without receipt of consideration by the
Corporation.
5.9 COMPLIANCE. This Program will be administered to comply with the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended.
5.10 ASSUMED LIABILITY. Effective January 1, 1996, this Program
governs the account liability for payments in lieu of Thrift-Incentive Plan
Contributions liability under the TRA Supplemental Benefit Plan of The Chase
Manhattan Bank, N.A. prior to merger with Chemical Bank. All rights and benefits
for such liability are governed by this Program.
5.11 CONSTRUCTION. The masculine gender, where appearing in this
Program, shall be deemed to also include the feminine gender. The singular shall
also include the plural, where appropriate.
ARTICLE VI
OBLIGATIONS UNDER TRA SUPPLEMENTAL PLAN AND
UNDER SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
6.1 TRA SUPPLEMENTAL PLAN. The balances of participants in Section
II of the TRA Supplemental Retirement Plan became part of the account balances
under this Program as of January 1, 1997. Such balances are subject to the terms
and conditions of this Program, including, but not limited to the hypothetical
investments described in Section 3.3.
6.2 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN. (a) Each Employee who
had a benefit as of December 31, 1996 under the Supplemental Executive
Retirement Plan shall have an account under this Program consisting of:
22
(i) the amount of his/her Supplemental Chase Retirement Account
including any amounts credited for the bonus payable in 1996; and
(ii) if such individual had accrued an annuity frozen as of
December 31, 1988, under the Supplemental Executive Retirement Plan,
an amount derived by converting the accrued life annuity frozen as
of December 31, 1988 utilizing the factors set forth in Section 4.1
of the Retirement Plan.
(b) Unless an employee otherwise elects by February 27, 1997, the amount
derived from the SERP shall be treated as if invested in DSIB;
provided that if the Employee elects another form of benefit of the
hypothetical investment, Employee by virtue of such election
acknowledges that such hypothetical investment may provide rates of
return lower than that provided by the Supplemental Executive
Retirement Plan.
(c) Employees shall vest in the balance of their account subject to SERP
only if they have a Period of Service recognized for Pay Credit
purposes under the Retirement Plan of at least 10 years.
23
APPENDIX I
- In December of 2001, Participants who had account balances under the J.P.
Morgan Deferred IC Program had the opportunity to transfer balances among
the investment choices under that Program to be effective as of January 1,
2002. Balances in the heritage Morgan accounts were then directed to the
new investment choices as follows:
Equity Account-S&P 500 Index Investment Choice
Bond Account-Intermediate Bond Investment Choice
Balanced Account-Moderately Aggressive Lifestyle Investment Choice
Deferred Cash Account-Short-Term Fixed Income Investment Choice
International Equity Account-International Equity Index Investment Choice
NASDAQ Account-NASDAQ 100 Index Investment Choice
MIPs Account-remain in place as IPA Investment Choice
DIBA Account-remain in place as DSIB Investment Choice
- Starting on January 7, 2002, heritage Morgan Participants had the
opportunity to transfer/reallocate balances (other than the DSIB
investment choice, IPA investment choice and Common Stock investment
choice) on a daily basis.
24
APPENDIX II
Effective June 30, 2003, the Large Cap Blend investment choice was eliminated as
an investment choice under the Program. Any amounts remaining in that investment
choice on June 30, 2003, as well as future contributions, were automatically
treated as invested in the S&P 500 Index investment choice.
Exhibit 10.5(a)
THE CHASE MANHATTAN 1994 LONG-TERM INCENTIVE PLAN EFFECTIVE
MAY 1, 1994
1. PURPOSE The purpose of The Chase Manhattan 1994 Long-Term Incentive Plan (the
"Plan") is to advance the interests of The Chase Manhattan Corporation ("CMC")
and its Subsidiaries by providing long-term incentive awards and stock ownership
opportunities to certain key employees (including officers and directors who are
employees) who contribute significantly to the longer term performance of CMC
and its Subsidiaries. In addition, the Plan is intended to enhance the ability
of CMC and its Subsidiaries to attract and retain individuals of superior
managerial ability and to motivate such key employees to exert their best
efforts towards the future progress and profitability of CMC and its
Subsidiaries. For purposes of this Plan, a Subsidiary shall be any corporation
in which CMC has a direct or indirect ownership interest, including any
corporation in which CMC acquires any such interest after the adoption of this
Plan, but only if CMC owns or controls, directly or indirectly, stock possessing
not less than 50 percent of the total combined voting power of all classes of
stock in such corporation.
2. ADMINISTRATION AND INTERPRETATION
a. ADMINISTRATION. The administration and operation of the Plan shall be vested
in the Compensation Committee of the Board of Directors of CMC, or such other
committee of such Board of Directors which shall succeed to the functions and
responsibilities, in whole or in part, of said Compensation Committee (the
"Committee"). The Committee shall consist of not less than three members of the
Board of Directors of CMC (the "Board of Directors") who are not officers or
employees of CMC or any Subsidiary and who are (i) "disinterested" within the
meaning of Rule 16b- 3 as in effect from time to time under the Exchange Act (as
defined in Section 6(e)) ("Rule 16b-3") and (ii) "outside directors" under
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") and
the regulations promulgated thereunder as in effect from time to time (the
"Section 162(m) Regulations"). No member of the Committee shall be entitled to
participate in the Plan. The Committee shall have the authority, consistent with
the provisions of the Plan, to determine the provisions of the awards to be
granted under the Plan; to determine the form of any such award; to interpret
the Plan and any award granted under the Plan; to adopt, amend and rescind rules
and regulations for the administration of the Plan and the awards granted under
the Plan; and to make all determinations in connection therewith which may be
necessary or advisable. The day-to-day administration of the Plan shall be
carried out by such officers and employees of The Chase Manhattan Bank (National
Association) as shall be designated from time to time by the Committee.
b. INTERPRETATION. The interpretation and construction by the Committee of any
page 1
provisions of the Plan or of any award granted under the Plan and any
determination by the Committee under any provision of the Plan or any such award
shall be final and conclusive.
c. LIMITATION ON LIABILITY. Neither the Board of Directors nor the Committee,
nor any member of either, shall be liable for any act, omission, interpretation,
construction or determination made by the Committee or any member thereof in
connection with the Plan in good faith, and the members of the Board of
Directors and the members of the Committee shall be entitled to indemnification
and reimbursement by CMC in respect of any claim, loss, damage or expense
(including counsel fees) arising therefrom to the full extent permitted by law
and under any directors and officers liability insurance coverage which may be
in effect from time to time.
d. RESERVED AUTHORITY OF THE BOARD OF DIRECTORS. The determinations by the
Committee as to: (i) the Incentive Stock Options (as defined in Section 4(b)(2))
and/or Non-qualified Stock Options (as defined in Section 4(b)(3)) to be granted
to a senior executive officer of CMC who is a member of the Board of Directors
and the aggregate number of Incentive Stock Options and/or Non-qualified Stock
Options to be granted to all other eligible employees pursuant to Section
4(b)(1); (ii) the Stock Appreciation Rights (as defined in Section 4(c)) to be
granted pursuant to Section 4(c) to any optionee who is a senior executive
officer of CMC and who is a member of the Board of Directors and who has been
granted Options (as defined in Section 4(b)(1)); and/or (iii) the aggregate
number of Restricted Stock Units (as defined in Section 5) which may be granted
to all eligible individuals under the Plan pursuant to Section 5(b); shall be
subject to the review and approval of the members of the Board of Directors who
are both "disinterested" under Rule 16b-3 and "outside directors" under Section
162(m) of the Code and the Section 162(m) Regulations only if such review and
approval (a) shall not cause the administration of the Plan to be other than
"disinterested" under Rule 16b-3 and (b) shall allow CMC to maintain the
deductibility of certain compensation paid pursuant to this Plan under Section
162(m) of the Code and the Section 162(m) Regulations, as determined by counsel
for CMC.
3. SHARES SUBJECT TO AWARDS UNDER THE PLAN
a. LIMITATION ON NUMBER OF SHARES. The shares subject to Options and authorized
for issuance upon the exercise of Stock Appreciation Rights ("Option Shares"),
and the shares subject to awards of Restricted Stock Units, shall be shares of
CMC's authorized but unissued common stock, par value $2.00 per share ("Common
Stock"), and shares, if any, of such Common Stock held as treasury stock by CMC.
The aggregate number of shares of Common Stock that may be made the subject of
awards under the Plan (a) during calendar year 1994 shall not exceed 100,000
shares and (b) during calendar year 1995 shall not exceed one and one-half
percent (1.5%) of the number of shares of Common Stock outstanding on December
31, 1994. The aggregate number of shares of Common Stock that may be made the
subject of awards under the Plan during any calendar year subsequent to calendar
year 1995 shall not exceed the sum of (i) one and one-half percent (1.5%) of the
number of shares of Common Stock outstanding on December 31 of the preceding
calendar year and (ii) the
page 2
number of shares of Common Stock as to which awards could have been made under
the Plan on December 31 of the preceding calendar year but as to which awards
were not made during such year. If any Option awarded under this Plan expires or
terminates unexercised or any award of Restricted Stock Units (or shares of
Restricted Stock into which it may be converted) under this Plan expires or is
terminated for any reason, the shares allocable to the unexercised or terminated
portion of such Option or award may again be made the subject of awards under
the Plan. Such shares shall be included in the amount determined pursuant to
clause (ii) of the immediately preceding paragraph as of the end of the year in
which such termination or expiration occurs.
b. ADJUSTMENTS OF NUMBER OF SHARES. The number of shares that may be made the
subject of awards as provided in Section 3(a) shall be subject to appropriate
adjustment, from time to time, in accordance with the provisions of Sections
4(d)(8) and 4(d)(9). In the event of a change in the Common Stock of CMC which
is limited to a change in the designation thereof to "Capital Stock" or other
similar designation, or to a change in the par value thereof, or from par value
to no par value, without increase or decrease in the number of issued shares,
the shares resulting from any such change shall be deemed to be Common Stock
within the meaning of the Plan.
4. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
a. ELIGIBILITY. The individuals who shall be eligible to receive Options and
Stock Appreciation Rights under the Plan shall be all salaried employees
(including officers and directors who are salaried employees) of CMC or of any
Subsidiary as the Committee from time to time shall determine as provided below.
b. GRANTS OF OPTIONS. (1) In General. Options granted under the Plan may be
either "Incentive Stock Options" or "Non-qualified Stock Options" (collectively
referred to herein as "Options"); provided, however, that no Option Shares under
the Plan shall be subject to more than one Option; and provided, further, that
no Incentive Stock Options may be granted under the Plan after February 15,
2004. Options granted under the Plan shall be of such type and for such number
of Option Shares (subject to the limitation contained in Section 3), as the
Committee shall designate at the time of grant; provided, however, that the
maximum number of shares of Common Stock with respect to which Options or Stock
Appreciation Rights shall be granted in any calendar year to any individual
under this Plan shall not exceed ten percent (10%) of the total number of shares
of Common Stock that may be made the subject of awards during any calendar year
under Section 3 of the Plan as determined on the effective date of the Plan for
calendar year 1994 and for any calendar year thereafter, on the first day of
such calendar year; provided, further, that such maximum number of shares shall
be subject to appropriate adjustment, from time to time, in accordance with the
provisions of Sections 4(d)(8) and 4(d)(9). The Committee, at any time and from
time to time, may authorize the granting of Incentive Stock Options and/or
Non-qualified Stock Options
page 3
to any individual eligible to receive the same. (2) Incentive Stock Options. The
term "Incentive Stock Option" shall mean an Option which is intended to qualify
as an incentive stock option under Section 422 of the Code. Subject to
adjustment as provided in Section 3(b), the aggregate number of shares of Common
Stock as to which Incentive Stock Options may be granted under the Plan shall
not exceed 5,000,000 shares of Common Stock. Such number of shares shall be
subject to appropriate adjustment, from time to time, in accordance with the
provisions of Sections 4(d)(8) and 4(d)(9). (3) Non-qualified Stock Options. The
term "Non-qualified Stock Option" shall mean any Option which is not an
Incentive Stock Option. Except as specifically provided herein, the provisions
of this Plan shall apply in the same manner to Incentive Stock Options and to
Non-qualified Stock Options.
c. GRANTS OF STOCK APPRECIATION RIGHTS. (1) In General. The term "Stock
Appreciation Right" shall mean the right to receive from CMC upon surrender of
an Option or a portion thereof, but without any payment to CMC, an amount equal
to the value (based on Market Value Per Share (as defined in Section 4(d)(4)),
on the exercise date, of the total number of Option Shares for which the Stock
Appreciation Right is exercised, less the option price which the optionee would
have otherwise been required to pay upon purchase of such Option Shares. The
amount payable by CMC upon the exercise of a Stock Appreciation Right may be
paid in cash or in Option Shares or in any combination thereof, as the Committee
in its sole discretion shall determine. No fractional shares shall be issuable
pursuant to any Stock Appreciation Right. The Committee in the same manner as is
provided with respect to Options in Section 4(b) may, from time to time,
authorize the granting of Stock Appreciation Rights to any optionee who has been
granted Options. Each Stock Appreciation Right shall relate only to Option
Shares subject to a specific Option granted under this Plan and may be granted
concurrently with the Option to which it relates or at any time prior to the
exercise, termination or expiration of such Option. However, at no time shall
the total number of Option Shares with respect to which Stock Appreciation
Rights remain outstanding and unexercised exceed the total number of Option
Shares subject to Options then outstanding and unexercised. (2) Limitations on
Stock Appreciation Rights. The Committee may fix, with respect to Stock
Appreciation Rights granted under the Plan, such waiting periods, exercise dates
or other limitations as it shall deem appropriate; provided, however, that no
Stock Appreciation Right shall be exercisable prior to the date when the Option
to which it relates first becomes exercisable or after the expiration of such
related Option. In addition, the Committee may impose at any time after the
grant of any Stock Appreciation Right a total prohibition on the exercise of
such Stock Appreciation Right for such period or periods as it, in its sole
discretion, deems to be in the best interest of CMC.
d. TERMS OF OPTIONS AND STOCK APPRECIATION RIGHTS. Options granted pursuant to
this Plan shall be evidenced by agreements ("Stock Option Agreements"). Stock
Appreciation Rights, if any, shall be evidenced by agreements amending and
forming a part of the Stock Option Agreements to which such Stock Appreciation
Rights relate. Stock Option Agreements, and the Options and Stock
page 4
Appreciation Rights, if any, represented thereby, shall comply with and be
subject to the following terms and conditions and may contain such other
provisions, consistent with the terms of this Plan, as the Committee shall deem
advisable. (1) Medium of Payment. Upon exercise of an Option, the option price
shall be payable to CMC (i) in United States dollars in cash or by check, bank
draft or money order payable to the order of CMC (or such other forms of payment
as the Committee may determine to be acceptable) or (ii) by tendering to CMC
shares of Common Stock owned by the optionee having an aggregate Market Value
Per Share as of the date of exercise which is not greater than the option price
and by paying the remainder of the option price as provided in (i) above.
Payment instruments will be received subject to collection. (2) Number of
Shares. Each Stock Option Agreement shall state the total number of Option
Shares which are subject to the Option and, if applicable, the total number of
Option Shares in respect of which any related Stock Appreciation Right shall be
exercisable. (3) Option Price. The option price for each Option Share shall be
not less than the Market Value Per Share on the date of the granting of the
Option. (4) Market Value Per Share. The Market Value Per Share as of any
particular date shall be the mean between the highest and lowest quoted selling
prices for shares of Common Stock as reported on the composite tape on such date
(or, if such date shall not be a business day, then the next preceding day which
shall be a business day); or, if no sale takes place, then the mean between the
bid and asked prices on such date; and if no bid and asked prices are quoted for
such date, then such value as shall be determined by such method as the
Committee shall deem to reflect fair market value as of such date. (5) Term. The
term of each Option and related Stock Appreciation Right shall be determined by
the Committee at the date of grant; provided, however, that each Option and
related Stock Appreciation Right shall expire not more than ten years from the
date the Option is granted. (6) Date of Exercise. Each Stock Option Agreement
shall state that the Option or Stock Appreciation Right granted therein may not
be exercised in whole or in part for any period or periods of time specified in
such agreement or otherwise as specified by the Committee. Except as may be so
specified, any Option or related Stock Appreciation Right may be exercised in
whole at any time or in part from time to time during its term; provided,
however, that no Option, or portion thereof, or related Stock Appreciation Right
may be exercisable until at least one year after the date of grant of such
Option. (7) Termination of Employment. In the event that an optionee's
employment by CMC or any of its Subsidiaries shall terminate, the optionee's
Options and related Stock Appreciation Rights, if any, shall terminate
immediately, except as hereinafter provided in this subsection. The Committee,
in its sole discretion, may determine that the optionee's Options and/or related
Stock Appreciation Rights, if
page 5
any, to the extent exercisable immediately prior to such termination of
employment, may remain exercisable for a designated period of time not to exceed
90 days after such termination of employment. If any termination of employment
is due to retirement with the consent of CMC, the optionee shall have the right,
subject to the provisions of subsections (5) and (6) above, to exercise each of
his Options and related Stock Appreciation Rights, if any, at any time until the
end of the term of each such Option and related Stock Appreciation Right to the
extent that the optionee was entitled to exercise the same immediately prior to
such retirement. Retirement by an optionee on or after the optionee's normal
retirement date in accordance with the provisions of the retirement plan of CMC
or one of its Subsidiaries under which the optionee is then covered shall be
deemed to be retirement with the consent of CMC. Termination of an optionee's
employment due to disability (as determined by the Committee in its sole
discretion) shall be deemed, solely for purposes of this Section 4(d)(7), to be
a retirement with the consent of CMC; provided that if the optionee thereafter
returns to employment with CMC or any of its Subsidiaries, the optionee's
employment shall be deemed for purposes of this Section 4(d)(7) to have never
been terminated. Whether any other termination of employment is to be considered
a retirement with the consent of CMC and whether an authorized leave of absence
or absence on military or government service or for other reasons shall
constitute a termination of employment for the purposes of the Plan shall be
determined by the Committee. If an optionee shall die (whether in the employment
of CMC or any of its Subsidiaries or following the optionee's retirement with
the consent of CMC) while entitled to exercise an Option and related Stock
Appreciation Right, if any, the optionee's estate, personal representative, or
beneficiary, as the case may be, shall have the right, subject to the provisions
of subsections (5) and (6) above, to exercise the Option and related Stock
Appreciation Right, if any, at any time within thirty-six months after the date
of the optionee's death (but in no event later than the expiration of the term
of each such Option and related Stock Appreciation Right, if any), to the extent
that the optionee was entitled to exercise the same immediately prior to the
optionee's death. (8) Recapitalization. The aggregate number of shares
determined under Section 3 and stated in Section 4(b)(2), the maximum number of
shares that may be made the subject of awards of Options or Stock Appreciation
Rights to any individual in any calendar year, the number of Option Shares to
which each outstanding Option and Stock Appreciation Right relates, and the
option price in respect of each such Option and Stock Appreciation Right, shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a subdivision or consolidation of
shares or other capital adjustments, or the payment of a stock dividend or other
increase or decrease in such shares, effected without receipt of consideration
by CMC or a Subsidiary; provided, however, that any fractional shares resulting
from any such adjustment shall be eliminated. (9) Certain Mergers or
Consolidations. After a merger of one or more
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