Exhibit 4.3
_________________________________________________________________
SOVEREIGN BANCORP, INC.
To
XXXXXX TRUST AND SAVINGS BANK,
Trustee
_______________
INDENTURE
Dated as of September 1, 1999
_______________
Junior Subordinated Debt Securities
_________________________________________________________________
SOVEREIGN BANCORP, INC.
Reconciliation and tie between
Trust Indenture Act of 1939
and Indenture,
dated as of September 1, 1999
Trust Indenture Act Sections Indenture Section
Section 310(a)(1)609
(a)(2)..................................... 609
(a)(3)..................................... Not Applicable
(a)(4)..................................... Not Applicable
(a)(5)..................................... 609
(b)........................................ 608
610
(c)........................................ Not Applicable
Section 311(a)(1)..................................... 613(a)
(b)........................................ 613(b)
(b)(2)..................................... 703(a)(3)
703(b)
Section 312(a)........................................ 701
702(a)
(b)........................................ 702(b)
(c)........................................ 702(c)
Section 313(a)........................................ 703(a)
(b)........................................ 703(b)
(c)........................................ 703(c)
(d)........................................ 703(d)
Section 314(a)........................................ 704,
1007
(b)........................................ Not Applicable
(c)(1)..................................... 102
(c)(2)..................................... 102
(c)(3)..................................... Not Applicable
(d)........................................ Not Applicable
(e)........................................ 102
Section 315(a)........................................ 609(a)
601(c)
(b)........................................ 602
703(a)(7)
(c)........................................ 601(b)
(d)........................................ 601(c)
(d)(1)..................................... 601(a)
(d)(2)..................................... 601(c)(2)
(d)(3)..................................... 601(c)(3)
(e)........................................ 514
Section 316(a)........................................ 101
(a)(1)(A).................................. 104(h), 502
512
(a)(1)(B).................................. 104(h), 513
(a)(2)..................................... Not Applicable
(b)........................................ 508
Section 317(a)(1)..................................... 503
(a)(2)..................................... 504
(b)........................................ 1003
Section 318(a)........................................ 107
(c)........................................ 107
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................... 1
SECTION 102. Compliance Certificates and Opinions........... 11
SECTION 103. Form of Documents Delivered to Trustee......... 12
SECTION 104. Acts of Holders................................ 12
SECTION 105. Notices, etc................................... 14
SECTION 106. Notice to Holders; Wavier...................... 15
SECTION 107. Conflict with Trust Indenture Act.............. 16
SECTION 108. Effect of Headings and Table of Contents....... 16
SECTION 109. Successors and Assigns......................... 16
SECTION 110. Separability Clause............................ 16
SECTION 111. Benefits of Indenture.......................... 16
SECTION 112. Governing Law.................................. 17
SECTION 113. Legal Holidays................................. 17
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally................................ 17
SECTION 202. Form of Trustee's Certificate of
Authentication................................. 18
SECTION 203. Debt Securities in Global Form................. 18
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series........... 19
SECTION 302. Denominations.................................. 23
SECTION 303. Execution, Authentication, Delivery and
Dating......................................... 23
SECTION 304. Temporary Debt Securities...................... 27
SECTION 305. Registration; Registration of Transfer and
Exchange....................................... 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities..................................... 34
SECTION 307. Payment of Interest; Interest Rights
Preserved...................................... 35
SECTION 308. Persons Deemed Owners.......................... 38
SECTION 309. Cancellation................................... 38
SECTION 310. Computation of Interest........................ 39
SECTION 311. Certification by a Person Entitled to Delivery of
a Bearer Security.............................. 39
SECTION 312. Judgments...................................... 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........ 40
SECTION 402. Application of Trust Money and Eligible
Instruments.................................... 42
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.............................. 42
SECTION 502. Acceleration of Maturity; Rescission and
Annulment...................................... 43
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee......................... 44
SECTION 504. Trustee May File Proofs of Claim............... 45
SECTION 505. Trustee May Enforce Claims without Possession of
Debt Securities or Coupons..................... 46
SECTION 506. Application of Money Collected................. 47
SECTION 507. Limitation on Suits............................ 47
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Exchange
Debt Securities for Capital Securities......... 48
SECTION 509. Restoration of Rights and Remedies............. 48
SECTION 510. Rights and Remedies Cumulative................. 49
SECTION 511. Delay or Omission Not Waiver................... 49
SECTION 512. Control by Holders of Debt Securities.......... 49
SECTION 513. Waiver of Past Defaults........................ 50
SECTION 514. Undertaking for Costs.......................... 50
SECTION 515. Waiver of Stay or Extension Laws............... 51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............ 51
SECTION 602. Notice of Defaults............................. 52
SECTION 603. Certain Rights of Trustee...................... 53
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities..................................... 55
SECTION 605. May Hold Debt Securities or Coupons............ 55
SECTION 606. Money Held in Trust............................ 55
SECTION 607. Compensation and Reimbursement................. 55
SECTION 608. Disqualification............................... 56
SECTION 609. Corporate Trustee Required; Eligibility........ 56
SECTION 610. Resignation and Removal; Appointment of
Successor...................................... 57
SECTION 611. Acceptance of Appointment by Successor......... 59
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business....................................... 60
SECTION 613. Preferential Collection of Claims Against
Company........................................ 61
SECTION 614. Authenticating Agent........................... 65
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders........................................ 67
SECTION 702. Preservation of Information; Communications to
Holders........................................ 67
SECTION 703. Reports by Trustee............................. 69
SECTION 704. Reports by Company............................. 70
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc................... 71
SECTION 802. Successor Corporation Substituted.............. 72
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders........................................ 72
SECTION 902. Supplemental Indentures with Consent of
Holders........................................ 74
SECTION 903. Execution of Supplemental Indentures........... 76
SECTION 904. Effect of Supplemental Indentures.............. 76
SECTION 905. Conformity with Trust Indenture Act............ 76
SECTION 906. Reference in Debt Securities to Supplemental
Indenture...................................... 76
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest....................................... 77
SECTION 1002. Maintenance of Office or Agency................ 77
SECTION 1003. Money for Debt Securities Payments to Be held in
Trust.......................................... 78
SECTION 1004. Officers' Certificate as to Default............ 80
SECTION 1005. Limitation on Disposition of Voting Stock of, and
Merger and Sale of Assets by, the Bank......... 80
SECTION 1006. Payment of Additional Amounts.................. 81
SECTION 1007. Waiver of Certain Covenants.................... 82
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article....................... 82
SECTION 1102. Election to Redeem; Notice to Trustee.......... 82
SECTION 1103. Selection by Trustee of Debt Securities to Be
Redeemed....................................... 83
SECTION 1104. Notice of Redemption........................... 83
SECTION 1105. Deposit of Redemption Price.................... 84
SECTION 1106. Debt Securities Payable on Redemption
Date........................................... 84
SECTION 1107. Debt Securities Redeemed in Part............... 85
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article....................... 86
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities..................................... 86
SECTION 1203. Redemption of Debt Securities for Sinking
Fund........................................... 87
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article....................... 87
SECTION 1302. Repayment of Debt Securities................... 87
SECTION 1303. Exercise of Option; Notice..................... 88
SECTION 1304. Election of Repayment by Remarketing
Entities....................................... 89
SECTION 1305. Debt Securities Payable on the Repayment
Date........................................... 89
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article....................... 90
SECTION 1402. Exchange of Capital Securities for Debt Securities
at Stated Maturity............................. 90
SECTION 1403. Right of Early Exchange of Capital Securities for
Debt Securities................................ 91
SECTION 1404. Notices of Exchange............................ 92
SECTION 1405. Rights and Duties of Holders of Debt Securities to
be Exchanged for Capital Securities............ 94
SECTION 1406. Election to Exchange........................... 96
SECTION 1407. Deposit of Capital Exchange Price.............. 96
SECTION 1408. Debt Securities Due on Capital Exchange Date; Debt
Securities Exchanged in Part................... 96
SECTION 1409. Form of Capital Security Election Form......... 98
Section 1410. Fractional Capital Securities.................. 98
Section 1411. Company to Obtain Governmental and Regulatory
Approvals...................................... 99
SECTION 1412. Taxes on Exchange.............................. 99
SECTION 1413. Covenants as to Capital Securities and Secondary
Offering....................................... 99
SECTION 1414. Provision in Case of Consolidation, Merger or
Transfer of Assets.............................100
SECTION 1415. Responsibility of Trustee......................100
SECTION 1416. Revocation of Obligation to Exchange Capital
Securities for Debt Securities.................101
SECTION 1417. Optional Securities Funds......................101
ARTICLE FIFTEEN
Securities Funds
SECTION 1501. Creation of Securities Funds...................103
SECTION 1502. Designations of Securities Funds...............103
SECTION 1503. Covenant of the Company to Obtain Securities
Funds..........................................103
ARTICLE SIXTEEN
Meetings of Holders of Debt Securities
SECTION 1601. Purposes for Which Meetings May Be
Called.........104
SECTION 1602. Call, Notice and Place of Meetings.............105
SECTION 1603. Persons Entitled to Vote at Meetings...........105
SECTION 1604. Quorum; Action.................................105
SECTION 1605. Determination of Voting Rights; Conduct and
Adjournment of Meetings........................107
SECTION 1606. Counting Votes and Recording Action of
Meetings.......................................108
ARTICLE SEVENTEEN
Defeasance
SECTION 1701. Termination of Company's Obligations...........108
SECTION 1702. Repayment to Company...........................109
SECTION 1703. Indemnity for Eligible Instruments.............110
ARTICLE EIGHTEEN
Subordination of Debt Securities
SECTION 1801. Debt Securities Subordinate to Senior
Debt...........................................110
SECTION 1802. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May
Require Further Evidence as to Ownership of Senior
Debt; Trustee Not Fiduciary to Holders of Senior
Debt...........................................113
SECTION 1803. Payment Permitted if No Default................114
SECTION 1804. Trustee Not Charged with Knowledge of
Prohibition....................................114
SECTION 1805. Trustee to Effectuate Subordination............114
SECTION 1806. Rights of Trustee as Holder of Senior
Debt...........................................115
SECTION 1807. Article Applicable to Paying Agents............115
SECTION 1808. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Debt...........................................115
ARTICLE NINETEEN
Conversion of Convertible Securities
SECTION 1901. Applicability of Article.......................116
SECTION 1902. Right to Convert...............................116
SECTION 1903. Exercise of Conversion Privilege; Delivery of
Common Stock on Conversion; No Adjustment for
Interest or Dividends..........................116
SECTION 1904. Cash Payments in Lieu of Fractional
Shares.........................................118
SECTION 1905. Conversion Price...............................118
SECTION 1906. Adjustment to Conversion Price.................118
SECTION 1907. Effect of Reclassification, Consolidation, Merger
or Sale........................................122
SECTION 1908. Taxes on Shares Issued.........................123
SECTION 1909. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common
Stock..........................................123
SECTION 1910. Responsibility of Trustee......................124
SECTION 1911. Notice to Holders Prior to Certain
Actions........................................124
SECTION 1912. Covenant to Reserve Shares.....................125
INDENTURE (the "Indenture") dated as of September 1,
1999, between SOVEREIGN BANCORP, INC., a Pennsylvania corporation
(hereinafter called the "Company"), having its principal place of
business at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 and XXXXXX TRUST AND SAVINGS BANK, an Illinois corporation
(hereinafter called the "Trustee"), having its Corporate Trust
Office at 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its subordinated debentures, notes, bonds or other
evidences of indebtedness (herein called the "Debt Securities"),
to be issued in one or more series.
All things necessary have been done to make this
Indenture a valid agreement of the Company, in accordance with
its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Debt Securities by the Holders thereof, intending
to be legally bound, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Debt
Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular.
(2) all other terms used herein which are defined
in the Trust Indenture Act or by Commission rule or
regulation under the Trust Indenture Act, either directly or
by reference therein, as in force at the date as of which
this instrument was executed, except as provided in Section
905, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the
United States at the date of such computation applied in a
manner consistent with past practices of the Company; and
(4) 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.
Certain terms, used principally in Article Six, are
defined in that Article.
"Act" when used with respect to any Holder has the
meaning specified in Section 104.
"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.
"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.
"Bank" means Sovereign Bank, a Federal Savings Bank,
and any successors to any substantial part of the present
business thereof.
"Bearer Security" means any Debt Security established
pursuant to Section 201 which is payable to bearer including,
without limitation, unless the context otherwise indicates, a
Debt Security in global bearer form.
"Board of Directors" means either the board of
directors of the Company, or the executive or any other committee
of that board duly authorized to act in respect hereof.
"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", when used with respect to any Place of
Payment or Place of Capital Exchange, means any day which is not
a Saturday or Sunday and which is not a legal holiday or a day on
which banking institutions or trust companies in that Place of
Payment or Place of Capital Exchange are authorized or obligated
by law or executive order to close.
"Capital Exchange Agent" means the Person or Persons
appointed by the Company to give notices and to exchange Debt
Securities of any series for Capital Securities as specified in
Article Fourteen.
"Capital Exchange Date", when used with respect to the
Debt Securities of any series, means any date on which such Debt
Securities are to be exchanged for Capital Securities pursuant to
this Indenture.
"Capital Exchange Price", when used with respect to any
Debt Security of any series to be exchanged for Capital
Securities, means the amount of Capital Securities for which such
Debt Security is to be exchanged pursuant to this Indenture or
the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the
Company which consist of any of the following: (i) Common Stock,
(ii) Perpetual Preferred Stock or (iii) securities which at the
date of issuance may be issued in exchange for, or the proceeds
from the sale of which may be designated as Securities Funds or
Optional Securities Funds for the payment of the principal of,
"mandatory convertible securities" under applicable regulations
of the Primary Federal Regulator. Capital Securities may have
such terms, rights and preferences as may be determined by the
Company.
"Capital Security Election Form" means a form
substantially in the form included in Section 1409.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de
Valeurs Mobilieres S.A.
"Closing Price" has the meaning specified in Section
1906(d).
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution 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 when used with reference to the
capital stock of the Company, the class of stock which, at the
date of execution of this Indenture, is designated as common
stock of the Company and stock of any class or classes into which
such common stock or any such other class may thereafter be
changed or reclassified. In case by reason of the operation of
Article Nineteen, the Convertible Securities shall be convertible
into any other shares or other securities or property of the
Company or any other corporation, any reference in this Indenture
to the conversion of Convertible Securities pursuant to Article
Nineteen shall be deemed to refer to and include conversion of
Convertible Securities into such other shares or other securities
or property.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" and "Company Order" mean,
respectively, a written request or order signed in the name of
the Company by the Chairman of the Board, the Chairman of the
Executive Committee of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating
Officer, a Vice Chairman, the Chief Financial Officer, or a Vice
President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the
Company whether or not designated by a number or word or words
before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Controlled Subsidiary" means any corporation more than
80% of the outstanding shares of Voting Stock, except for
directors' qualifying shares, of which shall at the time be owned
directly by the Company.
"Conversion Price" has the meaning specified in
Section 1905.
"Convertible Securities" means any series of Debt
Securities that are designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee at which at any particular time its
corporate trust business shall be administered.
The term "corporation" includes corporations,
associations, companies and business trusts.
The term "coupon" means any interest coupon
appertaining to a Bearer Security.
"Debt Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Debt
Securities authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Debt 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 301 until a successor Depositary shall have
become such pursuant to the applicable provisions of this
Indenture, 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 Debt Securities of any such series shall mean the
Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in
Section 312.
"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.
"Eligible Instruments" means monetary assets, money
market instruments and securities that are payable in Dollars
only and essentially risk free as to collection of principal and
interest, including U.S. Government Obligations.
"Euroclear" means Xxxxxx 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 501.
"Exchange Rate" shall have the meaning specified as
contemplated in Section 301.
"Exchange Rate Agent" shall have the meaning specified
as contemplated in Section 301.
"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 Debt 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 Debt
Securities denominated in ECU, and other composite currency or
Foreign Currency, and signed by the Chairman of the Board, the
Chairman of the Executive Committee of the Board, a Vice Chairman
of the Board, the President, the Chief Financial Officer, the
Treasurer or any Assistant Treasurer of the Company or the
Exchange Rate Agent appointed pursuant to Section 301 and
delivered to the Trustee.
"Foreign Currency" means a currency issued by the
government of any country other than the United States of
America.
"Global Exchange Agent" has the meaning specified in
Section 304.
"Global Exchange Date" has the meaning specified in
Section 304.
"Global Security" means a Debt Security issued to
evidence all or part of a series of Debt Securities in accordance
with Section 303.
"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 a
coupon, means the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented, amended
or restated by or pursuant to one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as
contemplated by Section 301.
The term "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", with respect to any Debt
Security, means the Stated Maturity of an installment of interest
on such Debt Security.
"Market Value" of any Capital Securities issued on any
Capital Exchange Date for Debt Securities of any series shall be
the sale price of such Capital Securities which are sold in the
Secondary Offering for the Debt Securities of such series. In
the event no such Secondary Offering takes place, the
Market Value of such Capital Securities shall be the fair value
of such Capital Securities on such Capital Exchange Date for Debt
Securities of such series as determined by three independent
nationally recognized investment banking firms selected by the
Company.
"Maturity", when used with respect to any Debt
Security, means the date on which the principal of such Debt
Security becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or exchange, repayment at the option of the
Holder or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the Chairman of the Executive
Committee of the Board, a Vice Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, a
Vice Chairman, the Chief Financial Officer, or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may (except as otherwise expressly provided in this
Indenture) be counsel for the Company, or who may be other
counsel acceptable to the Trustee, which is delivered to the
Trustee.
"Optional Securities Fund" means a fund pursuant to
which the proceeds of sales of Capital Securities may be
designated on the books of the Company for the payment of any of
the principal of any Debt Security pursuant to Section 1417 of
this Indenture.
"Original Issue Discount Security" means any Debt
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 502.
"Outstanding", when used with respect to Debt
Securities means, as of the date of determination, all Debt
Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof 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 Debt
Securities and any coupons appertaining thereto; provided,
however, that if such Debt 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) Debt Securities in exchange for or in lieu
of which other Debt Securities have been authenticated and
delivered, or which have been paid, pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the
requisite principal amount of Debt Securities Outstanding have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Debt Securities owned by the Company
or any other obligor upon the Debt Securities or any Affiliate of
the Company or of 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 such request,
demand, authorization, direction, notice, consent or waiver, only
Debt Securities which the Trustee knows to be so owned shall be
so disregarded. Debt 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 Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest
on any Debt Securities on behalf of the Company.
"Perpetual Preferred Stock" means any stock of any
class of the Company which has a preference over Common Stock 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 mandatorily redeemable or
repayable, or redeemable or repayable at the option of the
Holder, other than in shares of Common Stock or Perpetual
Preferred Stock of another class or series or with the proceeds
of the sale of Common Stock or Perpetual Preferred Stock.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company, or
government or any agency or political subdivision.
"Place of Capital Exchange", when used with respect to
Debt Securities of any series, means any place where the Debt
Securities of such series are exchangeable for Capital Securities
as specified pursuant to Section 301.
"Place of Payment," when used with respect to the Debt
Securities of any series means any place where the principal of
(and premium, if any) and interest on the Debt
Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of
the same debt as that evidenced by such particular Debt Security;
and, for the purposes of this definition, any Debt Security
authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United
States federal regulator of the Company (which at the date of
this Indenture is the Office of Thrift Supervision), or any
successor body or institution.
"Redemption Date", when used with respect to any Debt
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 Debt
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Debt Security in the
form of Registered Securities established pursuant to Section 201
which is registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any series
means the date specified for that purpose as contemplated by
Section 301.
"Remarketing Entity", when used with respect to Debt
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 Debt Securities.
"Repayment Date", when used with respect to any Debt
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 Debt
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 officer within the Corporate Trust Department
(or any successor group) of the Trustee, including any vice
president, assistant vice president, trust officer, assistant
secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such
officers, or to whom any corporate trust matter is referred at
the Trustee's Corporate Trust Office because of such officer's
knowledge of and familiarity with the particular subject.
"Rights" has the meaning specified in Section 1906(c).
"Secondary Offering", when used with respect to the
Debt Securities of any series, means the offering and sale by the
Company of Capital Securities for the account of Holders of Debt
Securities of such series who elect to receive cash and not
Capital Securities on the Capital Exchange Date for such series.
"Securities Fund" means a fund pursuant to which the
proceeds of sales of Capital Securities are designated on the
books of the Company for the payment of any principal of any Debt
Security pursuant to the provisions of Section 1501.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means any obligation of the Company to
its creditors whether now outstanding or subsequently incurred
other than (i) any obligation as to which, in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligation is not Senior
Debt, (ii) obligations evidenced by the Debt Securities, and
(iii) obligations that are expressly stated in the terms of the
Debt Securities (or in this Indenture, any indenture supplement,
or any Officers' Certificate delivered under Section 301 hereof
with respect to such Debt Securities) to be Senior Debt.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity", when used with respect to any Debt
Security or any installment of interest thereon, means the date
specified in such Debt Security or a coupon representing such
installment of interest as the fixed date on which the principal
of such Debt Security or such installment of interest is due and
payable.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed, except as provided in Section 905.
"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 Debt Securities of any series shall mean
the Trustee with respect to Debt Securities of that series.
"United States" means the United States of America
(including the District of Columbia) and its possessions.
"United States Alien" 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.
"U.S. Government Obligations" means direct obligations
of the United States for the payment of which its full faith and
credit is pledged, or obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the
United States the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States.
"Voting Stock", as applied to the stock (or equivalent
thereof) of any corporation, means stock (or the equivalent
thereof) of any class or classes, however designated, having
ordinary voting power for the election of a majority of the
directors of such corporation, other than stock (or such
equivalent) having such power only by reason of the happening of
a contingency.
SECTION 102. 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
(other than the delivery of any Debt Security to the Trustee for
authentication pursuant to Section 303), 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 certificates provided pursuant to Section 704(4))
shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
SECTION 103. 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 or her certificate or
opinion is based is 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 is
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 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this
Indenture to be given or taken by Holders 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 Debt 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 in this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders of Debt 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 of the holding by any
Person of a Debt Security shall be sufficient for any purpose of
this Indenture and (subject to Section 601) 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 Debt
Security shall be proved in the manner provided in Section 1606.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved in any manner
which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) 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,
banker 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 in the amount and with the serial numbers 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.
(e) 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
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.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Debt
Security shall bind every future holder of the same Debt Security
and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debt Security.
(g) For purposes of determining the principal amount
of Outstanding Debt 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 this Indenture, (i) each Original Issue Discount
Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable
pursuant to the terms of such Original Issue Discount Security as
of the date there is delivered to the Trustee and, where it is
hereby expressly required, to the Company, such Act by Holders of
the required aggregate principal amount of the Outstanding Debt
Securities of such series and (ii) each Debt 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 Debt Security in the
currency in which such Debt 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 Debt 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 301).
(h) The Company may set a record for purposes of
determining the identity of Holders of Debt Securities of any
series entitled to vote or consent to any action by vote or
consent authorized or permitted by Section 512 or Section 513.
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 Debt Securities furnished to the Trustee
pursuant to Section 701 prior to such solicitation.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided), if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Indenture Trust
Division.
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary at the address
of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished
in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Wavier.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected
by such event, at such Holder's 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; and (2) such notice shall be sufficiently given to
Holders of Bearer Securities by publication thereof in an
Authorized Newspaper in The City of New York and, if the Debt
Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland
and such stock exchange shall so require, in London, and, if the
Debt Securities of such series are then listed on the Luxembourg
Stock Exchange and such stock exchange shall so require, in
Luxembourg and, if the Debt Securities of such series are then
listed on any other stock exchange outside the United States and
such stock exchange shall so require, in any other required city
outside the United States or, if not practicable, 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 or
irregularities in regular mail service or for any reason, it
shall be impossible or impracticable to mail notice of any event
to Holders when said notice is required to be given pursuant to
any provision of this Indenture or of the Debt Securities, then
any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. In any case where notice to Holders of
Registered Securities is to be given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to
any particular Holder of a Registered Security 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 by reason of any other cause, it
shall be impossible or impracticable to make publication of any
notice to Holders of Bearer Securities as provided above, then
such method of publication or notification as shall be made with
approval of the Trustee shall constitute a sufficient publication
of such notice. Neither 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
wavier 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 wavier.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act 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 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in
this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether expressed
or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt
Securities or coupons 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 4-3. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or
coupons, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Paying
Agent and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons
shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Capital Exchange Date or Stated Maturity of any Debt
Security shall not be a Business Day at any Place of Payment or
Place of Capital Exchange, then (notwithstanding any other
provision of this Indenture or of the Debt Securities or coupons)
payment of interest or principal (and premium, if any) or
exchange of Debt Securities for Capital Securities or cash need
not be made at such Place of Payment or Place of Capital Exchange
on such date, but may be made on the next succeeding Business Day
at such Place of Payment or Place of Capital Exchange with the
same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date, Capital Exchange Date or Stated
Maturity, and no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date, Repayment
Date, Capital Exchange Date or Stated Maturity, as the case may
be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer
Securities and related coupons, if any, of each series shall be
in substantially the form (including temporary or permanent
global form) as shall be established in or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in
each case with 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 Debt Securities or
coupons, as evidenced by their signatures on the Debt Securities
or coupons. If the form of Debt Securities of any series or
coupons (including any such Global Security) is established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 or the authentication and delivery of
such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section
301, Debt Securities in bearer form, other than Debt Securities
in temporary or permanent global form, shall have coupons
attached.
The definitive Debt Securities and coupons, if any,
shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any manner, all as determined by
the officers executing such Debt Securities, as evidenced by the
execution of such Debt Securities and coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture
XXXXXX TRUST AND SAVINGS BANK
as Trustee
By_________________________________
Authorized Signatory
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or
in part in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (12) of Section 301 and
the provisions of Section 302, such Global Security shall
represent the aggregate amount of Outstanding Debt
Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Global Security to reflect the amount, or
any increase or decrease in the amount, of Outstanding Debt
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 303 or Section 304.
The provisions of the last sentence of Section 303(g)
shall apply to any Debt Securities represented by a Debt Security
in global form if such Debt Security was never issued and sold by
the Company and the Company delivers to the Trustee the Debt
Security in global form together with written instructions (which
need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the
principal amount of Debt Securities represented thereby, together
with the written statement contemplated by the last sentence of
Section 303(g).
Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series.
The aggregate principal amount of Debt Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Debt Securities may be issued in one or more
series. There shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior
to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the
series (which shall distinguish the Debt Securities of the
series from all other Debt Securities);
(2) the limit, if any, upon the aggregate
principal amount of the Debt Securities of the series which
may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to
Section 304, 305, 306, 906, 1107, 1303, 1408 or 1903 and
except for any Debt Securities which, pursuant to
Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal and
premium, if any, of the Debt Securities of the series are
payable;
(4) the rate or rates, if any, at which the Debt
Securities of the series shall bear interest, or the method
or methods by which such rate or rates may be determined,
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 Registered Security on any Interest Payment Date and the
circumstances, if any, in which the Company may defer
interest payments;
(5) the place or places where, subject to the
provisions of Section 1002, the principal of (and premium,
if any) and interest on Debt Securities of the series shall
be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and
demands to or upon the Company in respect of the Debt
Securities of the series and this Indenture may be served
and where notices to Holders pursuant to Section 106 will be
published;
(6) if applicable, the period or periods within
which or the date or dates on which, the price or prices at
which and the terms and conditions upon which Debt
Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(7) if applicable, the place or places at which,
the period or periods within which, the price or prices at
which and the terms and conditions upon which Debt
Securities shall be exchangeable for Capital Securities of
the Company, which terms and conditions shall not be
inconsistent with Article Fourteen;
(8) any covenant or option of the Company to
create a Securities Fund for the repayment of the Debt
Securities and the terms and conditions of such Securities
Fund, which terms and conditions shall not be inconsistent
with Article Fifteen;
(9) the obligation, if any, of the Company to
redeem, repay or purchase Debt 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 Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(10) whether Debt Securities of the series are to
be issuable as Registered Securities, Bearer Securities or
both, whether Debt 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 Debt Security of such series of like
tenor and term to be issued;
(11) whether the Debt Securities of the series
shall be issued in whole or in part in the form of a Global
Security or Securities and, in such case, the Depositary and
Global Exchange Agent for such Global Security or
Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(12) if Debt Securities of the series are to be
issuable initially in the form of a temporary Global
Security, the circumstances under which the temporary Global
Security can be exchanged for definitive Debt Securities and
whether the definitive Debt Securities will be Registered
and/or Bearer Securities and will be in global form and
whether interest in respect of any portion of such Global
Security payable in respect of an Interest Payment Date
prior to the Global Exchange Date shall be paid to any
clearing organization with respect to a portion of such
Global Security held for its account and, in such event, the
terms and conditions (including any certification
requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date
if other than as provided in this Article Three;
(13) whether, and under what conditions,
additional amounts will be payable to Holders of Debt
Securities of the series pursuant to Section 1006;
(14) the denominations in which any Registered
Securities of the series shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof,
and the denominations in which any Bearer Securities of such
series, shall be issuable, if other than the denominations
of $5,000;
(15) if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of
the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section
502;
(16) the currency or currencies of denomination of
the Debt 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;
(17) the currency or currencies in which payment
of the principal of (and premium, if any) and interest on
the Debt 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 the terms
and conditions upon which such election is to be made and
the Exchange Rate and Exchange Rate Agent;
(18) if the amount of payments of principal of
(and premium, if any) or interest on the Debt Securities of
the series may be determined with reference to an index
based on a currency or currencies other than that in which
the Debt Securities are denominated or designated to be
payable, the manner in which such amounts shall be
determined;
(19) if payments of principal of (and premium, if
any) or interest on the Debt Securities of the series are to
be made in a Foreign Currency other than the currency in
which such Debt Securities are denominated, the manner in
which the Exchange Rate with respect to such payments shall
be determined or if the Exchange Rate is to be determined
otherwise than as provided in Section 101;
(20) any Events of Default with respect to Debt
Securities of such series, if not set forth herein;
(21) the terms and conditions, if any, pursuant to
which the Company's obligations under this Indenture may be
terminated through the deposit of money or Eligible
Instruments as provided in Articles Four or Seventeen;
(22) the Person or Persons who shall be Security
Registrar for the Debt Securities of such series if other
than the Trustee, and the place or places where the Security
Register for such series shall be maintained and the Person
or Persons who will be the initial Paying Agent or Agents,
if other than the Trustee;
(23) whether the Debt Securities of the series are
Convertible Securities and the terms related thereto
including the Conversion Price and the date on which the
right to convert expires; and
(24) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture).
All Debt 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 Resolutions and set forth
in such Officers' Certificate or in any such indenture
supplemental hereto.
Debt 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 or Repayment Dates
and may be denominated in different currencies or payable in
different currencies.
If any of the terms of a series of Debt Securities are
established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in
such form and denominations as shall be specified in the form of
Debt Security for such series approved or established pursuant to
Section 201 or in the Officers' Certificate delivered pursuant to
Section 01. In the absence of any specification with respect to
the Debt Securities of any series, the Registered Securities of
such series, if any, shall be issuable in denominations of $1,000
and any integral multiple thereof and the Bearer Securities of
such series, if any, shall be issuable in the denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and
Dating.
(a) The Debt Securities shall be executed on behalf of
the Company by its Chairman of the Board, the Chairman of the
Executive Committee of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating
Officer, a Vice Chairman, the Chief Financial Officer, or a Vice
President, and by its Treasurer or one of its Assistant
Treasurers or its Secretary or one of its Assistant Secretaries
under its corporate seal reproduced thereon. The signature of
any of these officers on the Debt Securities may be manual or
facsimile. Coupons shall bear the facsimile signature
of the Treasurer or any Assistant Treasurer of the Company.
Debt 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 Debt Securities or coupons of any series or did not hold
such offices at the date of such Debt Securities or coupons.
(b) At any time and from time to time after the
execution and delivery of this Indenture, Debt Securities of any
series may be executed by the Company and delivered to the
Trustee for authentication, and, except as otherwise provided in
this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further
action by the Company; provided, however, that, in connection
with its original issuance, a Bearer Security may be delivered
only outside the United States and, except in the case of a
temporary Global Security, only if the Company or its agent shall
have received the certification required pursuant to Sections
304(b)(iii) and (iv), unless such certification shall have been
provided earlier pursuant to Section 304(b)(v) hereof, and only
if the Company has no reason to know that such certification is
false.
To the extent authorized in or pursuant to a Board
Resolution and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, such
written Company Order may be given by any one officer of the
Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts,
rates of interest, maturity dates and other matters contemplated
by such Board Resolution and Officers' Certificate or
supplemental indenture to be so instructed in respect thereof.
Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the
Company shall deliver to the Trustee (i) the certificates called
for under Sections 201 and 301 hereof and (ii) an Opinion of
Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting
the additional responsibilities under this Indenture in relation
to any Debt Securities, the Trustee shall be entitled to receive,
prior to the initial authentication of such Debt Securities, and
(subject to Section 601) shall be fully protected in relying
upon:
(i) a Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken
pursuant to such resolution certified by the Secretary or an
Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any,
relating thereto;
(iii) an Officers' Certificate setting forth the
form and terms of the Debt Securities of such series and
coupons, if any, pursuant to Sections 201 and 301 and
stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Debt Securities
have been complied with, that no Event of Default with
respect to any series of Debt Securities has occurred and is
continuing and that the issuance of such Debt Securities is
not and will not result in an Event of Default or an event
or condition which, upon the giving of notice (or the
acquisition of knowledge) or the lapse of time or both,
would become an Event of Default; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities
and coupons, if any, has been established in or
pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 201 in conformity
with the provisions of this Indenture;
4-3 that the terms of such Debt Securities
and coupons, if any, have been established in or
pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 301 in conformity
with the provisions of this Indenture;
(C) that such Debt Securities and coupons,
if any, 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 binding obligations of the
Company, enforceable in accordance with their terms,
subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally and
the application of general principles of equity, except
that where the Debt Securities of any series are to be
exchanged for Capital Securities or paid from the
Securities Fund, the issuance of Capital Securities
will require further action by the Board of Directors;
(D) that the Company has the corporate power
to issue such Debt Securities and coupons, if any, and
has duly taken all necessary corporate action with
respect to such issuance;
(E) that the issuance of such Debt
Securities and coupons, if any, will not contravene the
charter or by-laws of the Company or result in any
violation of any of the terms or provisions of any law
or regulation or of any material indenture,
mortgage or other agreement known to such counsel by
which the Company or any of its subsidiaries is bound;
(F) that all laws and requirements in
respect of the execution and delivery by the Company of
such Debt Securities and coupons, if any, have been
complied with and that authentication and delivery of
such Debt Securities by the Trustee will not violate
the terms of the Indenture; and
(G) such other matters as the Trustee may
reasonably request.
(c) If the Company shall establish pursuant to
Section 301 that the Debt Securities of a series are to be issued
in whole or in part in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order 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 Debt
Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered 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 instruction.
(d) The Trustee shall have the right to decline to
authenticate and deliver any Debt Securities under this
Section 303 if (i) the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or (ii) the
issuance of such Debt Securities will adversely affect the
Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not
to be issued at one time, it shall not be necessary to deliver an
Opinion of Counsel at the time of issuance of each Debt Security,
but such Opinion of Counsel, with appropriate modifications, may
instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date
of its authentication. Each Bearer Security shall be dated as of
the date specified as contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Debt
Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder. Except as permitted
by Section 306, 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 Debt 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 Debt
Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been
issued and sold by the Company, for all purposes of this
Indenture such Debt Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301
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 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt
Securities of any series, the Company may execute, and upon
receipt of documents required by Section 301 and 303, together
with a Company Order, the Trustee shall authenticate and deliver,
temporary Debt Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the
definitive Debt 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 Debt Securities may determine, as
evidenced by their signatures on such Debt Securities. In the
case of Debt Securities of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form
representing all or any part of the Outstanding Debt Securities
of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt
Securities in global form, if temporary Debt Securities of
any series are issued, the Company will cause definitive
Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive
Debt Securities of such series, the related temporary Debt
Securities shall be exchangeable for such definitive Debt
Securities upon surrender of the temporary Debt Securities
of such series at the office or agency of the
Company in a Place of Payment for such series, without
charge to the Holder. Upon surrender for cancellation of
any one or more temporary Debt 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 Debt Securities of the same series of like tenor
and terms and of authorized denominations; provided,
however, that no Bearer Security shall be delivered in
exchange for a Registered Security; and provided, further,
that a Bearer Security shall be delivered in exchange for a
Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued
in temporary global form, any such temporary Global Security
shall, unless otherwise provided pursuant to Section 301, be
delivered to the Depositary for the benefit of Euroclear and
CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other
accounts as they may direct).
(iii) 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 (the
"Global Exchange Date"), the Company shall deliver
definitive Debt Securities to the Trustee or the agent
appointed by the Company pursuant to Section 301 to effect
the exchange of the temporary Global Security for definitive
Debt Securities (the "Global Exchange Agent"), in an
aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On
or after the Global Exchange Date, such temporary Global
Security shall be surrendered by the Depository to the
Global Exchange Agent, to be exchanged, in whole or from
time to time in part, for definitive Debt Securities without
charge and the Trustee or the Global Exchange Agent, if
authorized by the Trustee pursuant to Section 614, shall
authenticate and deliver, in exchange for each portion of
such temporary Global Security, an equal aggregate principal
amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor and terms as the
portion of such temporary Global Security to be exchanged.
Upon any exchange of a part of such temporary Global
Security for definitive Debt Securities, the portion of the
principal amount and any interest thereon so exchanged shall
be endorsed by the Global Exchange Agent on a schedule to
such temporary Global Security, whereupon the principal
amount and interest payable with respect to such temporary
Global Security shall be reduced for all purposes by the
amount so exchanged and endorsed. The definitive Debt
Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form,
registered form, global registered form or global bearer
form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof
is so specified, as requested by the beneficial owner
thereof; provided, however, that, in the case of the
exchange of the temporary Global Security for definitive
Bearer Securities (including a definitive Global Bearer
Security), upon such presentation by the Depositary, such
temporary Global Security shall be accompanied by a
certificate signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be
exchanged and a certificate signed by CEDEL S.A. as to the
portion of such temporary Global Security held for its
account then to be exchanged, each in form set forth in
Exhibit B to this Indenture, unless such certificate(s)
shall have been provided earlier pursuant to Section
304(b)(v) hereof; and provided, further, that definitive
Bearer Securities (including a definitive Global Bearer
Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the
requirements of Section 303.
(iv) The interest of a beneficial owner of Debt
Securities in a temporary Global Security shall be exchanged
for definitive Debt Securities of the same series of like
tenor and terms following the Global Exchange Date when the
account holder instructs Euroclear or CEDEL S.A., as the
case may be, to request such exchange on such account
holder's behalf and in the case of the exchange of the
temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), unless such
certificate(s) shall have been earlier provided pursuant to
Section 304(b)(v) hereof, the account holder delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate
in the form set forth in Exhibit A-1 and, if applicable A-2
to this Indenture, dated no earlier that 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 Global Exchange Agent, any authenticating agent
appointed for such series of Debt 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 Debt 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 Debt Securities in person at the
offices of Euroclear and CEDEL S.A. Definitive Debt
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.
(v) Until exchanged in full as hereinabove
provided, the temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of the same series
and of like tenor and terms authenticated and delivered
hereunder, except that interest payable on a temporary
Global Security on an Interest Payment Date shall be payable
to Euroclear and CEDEL S.A. on such Interest Payment Date
only if there has been delivery by Euroclear and CEDEL S.A.
to the Global Exchange Agent of a certificate or
certificates in form set forth in Exhibit B to this
Indenture dated no earlier that the first Interest Payment
Date, for credit without further interest 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 set forth in Exhibit A-1 and,
if applicable, A-2 to this Indenture dated no earlier than
the first Interest Payment Date. 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
Global Exchange Agent which, upon expiration of two years
after such Interest Payment Date shall repay such interest
to the Company in accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer
and Exchange.
The Company shall cause to be kept at one of the
offices or agencies to be maintained by the Company in accordance
with the provisions of this Section 305 and Section 1002, with
respect to the Debt Securities of each series which are
Registered Securities, a register (herein 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 of transfers of
Registered Securities. Pursuant to Section 301, the Company
shall appoint, with respect to Debt Securities of each series
which are Registered Securities, a "Security Registrar" for the
purposes of registering such Debt Securities and transfers and
exchanges of such Debt Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, 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 the same series of any authorized
denomination or denominations, of like tenor and terms and
aggregate principal amount.
At the option of the Holder, Registered Securities of
any series may be exchanged for other Registered Securities of
the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be
exchanged at such office or agency. Bearer Securities may not be
delivered in exchange for Registered Securities.
At the option of the Holder, Registered Securities or
Bearer Securities of any series may be issued in exchange for
Bearer Securities (except as otherwise specified as contemplated
by Section 301 with respect to a Bearer Security in global form)
of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, 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 and the Trustee 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; provided, however, that, except as other provided in
Section 1002, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an
office or agency 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 and
terms 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 of payment, as the case may be.
Whenever any Debt Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debt Securities which the Holder
marking the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities
of a series notifies the Company that it is unwilling or unable
to continue as Depositary for the Debt Securities of such series
or if at any time the Depositary for the Debt Securities of such
series shall no longer be eligible under Section 303(h), the
Company shall appoint a successor Depositary with respect to the
Debt Security of such series. If a successor
Depositary for the Debt 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 301(11) shall no longer be
effective with respect to the Debt 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
Debt Securities of such series, will authenticate and deliver,
Debt Securities of such series 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 Debt Securities of any series issued in the
form of one or 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 Debt Securities
of such series, will authenticate and deliver, Debt Securities of
such series in definitive form and 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 301
with respect to a series of Debt Securities, the Depositary for
such series of Debt Securities may surrender a Global Security
for such series of Debt Securities in exchange in whole or in
part for Debt Securities of such series of like tenor and terms
and in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to each Person specified by such Depositary a new
Debt 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 denomination equal to the difference, if
any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Debt Securities
delivered to Holders thereof.
In any exchange provided for in any of the proceeding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Debt Securities (a) in definitive
registered form in authorized denominations if the Debt
Securities of such series are issuable as Registered Security,
(b) in definitive bearer form in authorized denominations, with
coupons attached, if the Debt Securities of each such
series are issuable as Bearer Securities or (c) as either
Registered or Bearer Securities, as shall be specified by the
beneficial owner thereof, if the Debt Security 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 unless the Company or its agent shall have
received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided,
further, that no delivery of a Bearer Security will be issued if
the Company has reason to know that any such certificate is
false.
Upon the exchange of a Global Security for Debt
Securities in definitive form, such Global Security shall be
cancelled by the Trustee. Registered Securities issued in
exchange for a Global Security pursuant to this Section shall be
registered in such names 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. The Trustee shall deliver such Registered
Securities to the persons in whose names such Debt Securities are
so registered. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section
to the persons, 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; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have
received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided,
further, that delivery of a Bearer Security shall occur only
outside the United States; and provided, further that no
definitive Bearer Security will be issued if the Company has
reason to know that any such certificate is false.
All Debt Securities issued upon any registration of
transfer or exchange for Debt Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Security Registrar or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and
the Trustee duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
transfer, registration of transfer or exchange of Debt
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 the Holders.
The Company shall not be required (i) to issue,
register the transfer of or exchange Debt Securities of any
particular series to be redeemed or exchanged for Capital
Securities for a period of fifteen days preceding the first
publication of the relevant notice of redemption or, if
Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption or
exchange, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption or exchange in
whole or in part, except the unredeemed or unexchanged portion of
such Registered Security being redeemed or exchanged in part, or
(iii) to exchange any Bearer Security so selected for redemption
or exchange except that such a Bearer Security may be exchanged
for a Registered Security of like tenor and terms of that series,
provided that such Registered Security shall be simultaneously
surrendered for redemption or exchange.
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; neither 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 thereafter 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 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security
with a mutilated coupon appertaining to it is surrendered to a
Paying Agent outside the United States designated by the Company,
or, in the case of any Registered Security, to the Trustee, or
(ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt
Security or coupon, and there is delivered to the Company and the
Trustee 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 and the Trustee that such Debt Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute
and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Debt
Security or Bearer Security with a mutilated coupon appertaining
to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or
in lieu of any such number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains; provided,
however, that any such new Bearer Security will be delivered only
in compliance with the conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen
Debt Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Debt Security, pay such Debt Security or coupon; provided,
however, that payment of principal of (and premium, if any) and
any interest on Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency
located outside the United States; and provided, further, that,
with respect to any such coupons, interest represented thereby
(but not any additional amounts payable as provided in Section
1006), shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupon
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 and printing expenses)
connected therewith.
Every new Debt Security of any series, with its
coupons, if any, issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debt Security, or in exchange for a
Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone,
and any such new Debt Security and coupons, if any, shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of that
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 Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that
Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest. 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 in a Place of
Payment for such series) 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 less than ten days prior to the date
of such payment.
Any interest on any Registered Security of any series
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 registered
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 (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (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 of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money and/or, to the
extent such Debt Securities are denominated and payable in
Dollars only, Eligible Instruments the payments of principal
and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee
or the Holder of such Registered Securities) will provide
money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without
investments) be 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 to the date of the proposed payment, such money
and/or Eligible Instruments 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 days and not 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. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the
Company shall furnish the Trustee with a list, or shall make
special arrangements satisfactory to the Trustee with
respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series
held by, the Holders appearing on the Security Register at
the close of business on such Special Record Date. In the
name and at the expense of the Company, the Trustee 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 of Registered
Securities of such series 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 the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant
to the following Clause (2). 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 for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of 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.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which the Registered
Securities 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 manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Debt Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt
Security.
Subject to the limitations set forth in Section 1002,
the Holder of any coupon appertaining to a Bearer Security shall
be entitled to receive 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 1002.
If any Registered Security is exchanged for Capital
Securities after any record date and on or prior to the next
succeeding Interest Payment Date (other than any Debt Security
whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be
paid by the Company on such Interest Payment Date notwithstanding
such exchange, and such interest (whether or not punctually paid
or duly provided for) shall be paid to the Person in whose name
that Debt Security is registered at the close of business on such
record date.
If any Bearer Security is exchanged for Capital
Securities after any record date and on or prior to the next
succeeding Interest Payment Date (other than any Debt Security
whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such
exchange, and such interest (whether or not punctually paid or
duly provided for) shall be paid by the Company pursuant to such
procedures as may be satisfactory to the Trustee.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or of the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered 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 Bearer
Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer 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 or
the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of
Debt Securities, all Debt Securities and coupons surrendered for
payment, redemption, repayment, transfer, exchange or credit
against any sinking fund payment pursuant to this Indenture,
shall, if surrendered to the Company or any agent of the Company,
be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for
cancellation any Debt Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be
authenticated in lieu of or in exchange for any Debt Securities
cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Debt Securities and
coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company
Order the Company shall direct that the cancelled Debt Securities
or coupons be returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Debt Securities of any series, interest on the
Debt Securities of each series shall be computed on the basis of
a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to
Delivery of a Bearer Security.
Whenever any provision of this Indenture or a Debt
Security contemplates that certification be given by a Person
entitled to delivery of a Bearer Security, such certification
shall be provided substantially in the form of Exhibit A-1 and,
if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose
consent shall not unreasonably be withheld.
SECTION 31
The Company may provide, pursuant to Section 301, for
the Debt Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be
specified as contemplated in Section 301, (a) the obligation, if
any, of the Company to pay the principal of (and premium, if any)
and interest on the Debt 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 301 is of the essence and agrees that judgments in
respect of such Debt 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 Debt 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 reasons 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
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as to any surviving rights of
registration of transfer or exchange of Debt Securities herein
expressly provided for and rights to receive payments of
principal and interest thereon and any right to receive
additional amounts, as provided in Section 1006) and the Trustee,
at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Debt Securities theretofore
authenticated and delivered and all coupons
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or
has been waived as provided in Xxxxxxx 000,
(xx) Debt Securities and coupons which have been
destroyed, lost or stolen and which have been replaced
or paid as provided in Xxxxxxx 000, (xxx) coupons
appertaining to Bearer Securities called for redemption
or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as
appropriate, surrender of which has been waived as
provided in Section 1106 or 1303 and (iv) Debt
Securities and coupons for whose payment money and/or
Eligible Instruments have 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 1003) have been
delivered to the Trustee canceled or for cancellation;
or
(B) all such Debt Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the
Company.
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee, as trust funds in trust for the purpose,
money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of
Debt Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with
the Trustee, without investment) be sufficient to pay and
discharge the entire indebtedness on such Debt Securities
and coupons of such series for principal (and premium, if
any) and interest, and any mandatory sinking fund, repayment
or analogous payments thereon, on the scheduled due dates
therefor to the date of such deposit (in the case of Debt
Securities and coupons which have become due and payable) or
to the Stated Maturity or Redemption Date, if any, and all
Repayment Dates (in the case of Debt Securities repayable at
the option of the Holders thereof); provided, however, that
in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a successor statute is filed with
respect to the Company within 91 days after the deposit, the
obligations of the Company under the Indenture
with respect to the Debt Securities of such series shall not
be deemed terminated or discharged, and in such event the
Trustee shall be required to return the deposited money and
Eligible Instruments to the Company;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) 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 Sections 607
and, if money or Eligible Instruments shall have been deposited
with the Trustee pursuant to Subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money and Eligible
Instruments.
Subject to the provisions of the last paragraph of
Section 1003, all money and Eligible Instruments deposited with
the Trustee pursuant to Section 401 shall be held in trust and
such money and the principal and interest received on such
Eligible Instruments shall be applied by it, in accordance with
the provisions of the Debt Securities, the coupons 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 (and premium, if any) and interest for whose
payment such money or Eligible Instruments have been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect
to Debt Securities of any series, 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, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) the entry of a decree or order for relief in
respect of the Company or the Bank by a court having
jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or
the Bank or of any substantial part of the property of
either, or ordering the winding up or liquidation of the
affairs of either, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive
days; or
(2) the commencement by the Company or the Bank
of a voluntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar
law, or the consent by the Company or the Bank to the entry
of a decree or order for relief in an involuntary case under
any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
other similar official of either of the foregoing or of any
substantial part of the property of either, or the making by
the Company or the Bank of an assignment for the benefit of
creditors, or the admission by the Company or the Bank in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
or the Bank in furtherance of any such action; or
(3) any other Event of Default, if any, provided
with respect to Debt Securities of such series specified as
contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Debt Securities
of any series at the time 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 Outstanding Debt Securities
of such series may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the
terms of such series) of and all accrued but unpaid interest on
all the Debt Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by such Holders), and upon any such declaration
such principal amount (or specified amount) shall become
immediately due and payable. Upon payment of such amount, all
obligations of the Company in respect of the payment of principal
of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration
with respect to Debt 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 Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest on
all Debt Securities of such series and any related
coupons,
(B) the principal of (and premium, if any,
on) any Debt 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 in such Debt Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue installments
for interest on each Debt Security and any related
coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default with respect to Debt
Securities of such series have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION DIE\ Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any
installment of interest on any Debt Security or any related
coupon when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any Debt Security at
the Maturity thereof, or
(3) defaults in the deposit of any sinking fund
payment, when and as due by the terms of a Debt Security of
such series, or
(4) defaults in any required designation of funds
as Securities Funds, or
(5) defaults in the performance, or breach, of
any covenant or warranty of the Company 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 been expressly included
in this Indenture solely for the benefit of series of Debt
Securities other than such series), and such default or
breach continues for a period of 30 days after there has
been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Debt Securities and coupons, the
amount then due and payable on such Debt Securities and coupons
for any overdue principal (and premium, if any) and interest,
sinking fund installment and interest, including the delivery of
any Capital Securities then required to be delivered, and, to the
extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if
any) and, upon overdue installments of interest, at the rate or
rates prescribed therefor in such Debt Securities; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts (including the
delivery of any Capital Securities then required to be delivered)
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 the delivery
of any Capital Securities required to be delivered and not so
delivered, or, in the case of the failure to deliver Capital
Securities, money equal to the principal amount of the Debt
Securities for which the Capital Securities were to be exchanged,
and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor
upon such Debt Securities and coupons and collect the moneys (or
money equal to the principal amount of the Debt Securities for
which Capital Securities were to be exchanged) 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
Debt Securities and coupons, wherever situated.
If an Event of Default or a default specified in this
Section will respect to Debt Securities of any series occurs and
is containing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Debt Securities of such series and any related coupons 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 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceedings, or any
voluntary or involuntary case under the Federal bankruptcy laws
as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or
any related coupons or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of
whether the principal of such Debt 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 or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(1) to file and prove a claim for the whole
amount of principal (and premium, if any) and interest owing
and unpaid in respect of the Debt Securities of such series
and any appurtenant coupons 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 of the
Holders allowed in such judicial proceeding, and
(2) 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, custodian, liquidator,
sequestrator or other similar official in any such 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 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 607.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Debt Securities or
coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims without
Possession of Debt Securities or Coupons.
All rights of action and claims under this Indenture or
the Debt Securities or coupons may be prosecuted and enforced by
the Trustee without the possession of any of the Debt Securities
or coupons or the production thereof in any proceeding relating
hereto, 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, be for the
ratable benefit of the Holders of the Debt Securities and coupons
in respect of which such judgment has been recovered.
SECTION PS\E Application of Money Collected.
Any money collected by the Trustee 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 (and premium, if any) or
interest, upon presentation of the Debt Securities or coupons, 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 Trustee for payment of all costs
and expenses of collection, including all sums paid or
advanced by the Trustee and the reasonable compensation,
expenses and disbursements of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
607;
SECOND: To the payment of amounts then due and
unpaid to the holders of Senior Debt, to the extent required
by Article Eighteen;
THIRD: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
on the Debt Securities and any coupons, 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 such Debt
Securities and any coupons for principal (and premium, if
any) and interest, respectively. The Holders of each series
of Debt 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 Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency
in which such series of Debt Securities is denominated into
Dollars at the Exchange Rate as of the date of declaration
of acceleration of the Maturity of the Debt Securities; and
FOURTH: The balance, if any, to the Person or
Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt 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
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Debt Securities of such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of such series
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered indemnity
reasonable to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) 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 Debt Securities of such series;
it being understood and intended that no one or more of such
Holders 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 such Holders, or to
obtain or to seek to obtain priority or preference over any other
of 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 of such Holders.
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest and to Exchange Debt
Securities for Capital Securities.
Notwithstanding any other provision in this Indenture,
the Holder of any Debt Security or coupon shall have the right
which is absolute and unconditional to receive payment of such
coupon on the respective Stated Maturity or Maturities expressed
in such Debt Security or coupon (or, in the case of redemption,
on the Redemption Date or the Repayment Date, as the case may
be), to have the Debt Securities exchanged for Capital Securities
pursuant to Article Fourteen, if applicable, and to institute
suit for the enforcement of any such payment or exchange, and
such right shall not be impaired without the consent of such
Holder, subject, however, to the provisions of Article Eighteen.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder 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 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Debt Security or coupon to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of 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 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the
Outstanding Debt 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 Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture;
(2) subject to the provisions of Section 601, 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 Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series
not joining in any such direction (it being understood that
the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly
prejudicial to such Holders); and
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series may on
behalf of the Holders of all the Debt Securities of any such
series and any related coupons waive any past default hereunder
with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or
premium, if any) or interest on any Debt Security of such
series, or
(2) 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 Debt
Security of such series or coupon affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Debt Security or coupon 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 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 Debt Securities of any series, or to
any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on
any Debt Security or the payment of any coupon on or after the
respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment,
on or after the Redemption Date or Repayment Date, as the case
may be) or for the enforcement of the right to exchange any Debt
Securities for Capital Securities as provided in Article
Fourteen.
SECTION 515. 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 whenever 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 benefits
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 SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) With respect to Debt Securities of any series,
except during the continuance of an Event of Default with respect
to the Debt Securities of such series,
(1) the Trustee undertakes to perform such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon Officers' Certificates or opinions
furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates
or opinions which by any provisions 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 to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the
Trustee shall, with respect to the Debt Securities of such series
or any coupons, as the case may be, exercise such of the rights
and powers vested in it by this Indenture, 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
such person's own affairs.
(c) 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 willful
misconduct, except that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section.
(2) the Trustee shall not be liable for any error
of 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
(3) the Trustee shall not be liable with respect
to any action taken, suffered, or omitted to be taken by it
with respect to Debt Securities of any series in good faith
in accordance with the direction of the Holders of a
majority in principal amount of Outstanding Debt Securities
of such 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 the Debt
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.
(e) 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 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to Debt Securities of any series the
Trustee shall transmit by mail to all Holders of Debt Securities
of such series, entitled to receive reports pursuant to Section
703(c), 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 (or premium, if any) or interest on any Debt
Security of such series or any related coupons or in the payment
of any sinking fund installment with respect to Debt Securities
of such series or in the exchange of Capital Securities for Debt
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 interest of the Holders
of Debt Securities of such series. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default
with respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon
or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) 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 shall
be sufficiently evidenced by a Board Resolution;
(c) 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;
(d) the Trustee may consult with counsel and the
advise 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;
(e) 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 of Debt Securities of such series or any related coupons
pursuant to this Indenture, unless such Holders shall have
offered security or indemnity reasonable to the Trustee against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) 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, debenture, note,
coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
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, other than any such books or records
containing information as to the affairs of the customers of the
Company or any of its subsidiaries; provided that the Trustee may
examine such books and records relating to customers to the
extent that such books and records contain information as to any
payments made to such customers in their capacity as Holders of
Debt Securities; and
(g) 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; no
Exchange Rate Agent, Global Exchange Agent, Capital Exchange
Agent, Depositary or Paying Agent shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or
omission by any of them.
(h) 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, or where information is required or necessary to be
furnished by the Company in order for the Trustee to act, the
Trustee (unless other evidence be herein specifically
prescribed), shall not be liable for any action it takes or omits
to take in good faith in reliance upon an Officer's Certificate;
(i) The Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions or agreements on the part of the Company, except as
otherwise specifically set forth in this Indenture, but the
Trustee may require of the Company full information and advice as
to the performance of the covenants, conditions and agreements
contained herein and should be entitled in connection therewith
to examine the books, records and premises of the Company;
provided, however, the Trustee agrees to maintain the
confidentiality of any nonpublic information relating to the
Company obtained by the Trustee in its capacity as
Trustee and not to reveal any such confidential information
except as necessary to comply with any court order or discovery
request; and further provided that the Trustee shall give prompt
notice to the Company of any such court order or discovery
request received by the Trustee;
(j) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty;
(k) Except for (i) the failure of the Company to file
any financial statements, documents or certificates specifically
required to be filed with the Trustee pursuant to the provisions
of this Indenture or (ii) any other event of which the Trustee
has "actual knowledge" and which event, with the giving of notice
or the passage of time or both, would constitute an Event of
Default under this Indenture, the Trustee shall not be deemed to
have notice of any default or event unless specifically notified
in writing by the Company or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities Outstanding; as
used herein, the term "actual knowledge" means the actual fact of
knowing, without a duty to make any investigation with regard
thereto; and
(l) The Trustee shall not be required to give any note
or surety in respect of the execution of the trusts and powers
under this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance
of Debt Securities.
The recitals contained herein and in the Debt
Securities, except the Trustee's certificates of authentication,
and in any coupons, and the information in any registration
statement, including all attachments thereto, except information
provided by the Trustee therein, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for
this correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt
Securities of any series or any coupons or any Capital
Securities. The Trustee shall not be accountable for the use or
application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no
representations to the Company's ability or authority to issue
Bearer Securities or the lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar
or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee
of Debt Securities and coupons, and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent,
Security Registrar or such agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the
extent required by law. Neither the Trustee nor any Paying Agent
shall be under any liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) 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);
(2) 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 willful misconduct; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or
administration of this trust or performance of its duties
hereunder, 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 claim
prior to the Debt Securities and any coupons upon all property
and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if
any) or interest on particular Debt Securities or any coupons.
The claims of the Trustee under this Section shall not be subject
to the provisions or Article Eighteen.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Article Five,
the expenses (including reasonable fees and expenses of its
counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of
administration under Bankruptcy Law.
SECTION 608. Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirements of Section 310(a)(1) of the Trust
Indenture Act. The Trustee is subject to Section 310(b) of the
Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States, 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, and 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 609 shall be
automatically amended to permit a corporation organized and doing
business under the laws of any such other 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 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 610. Resignation and Removal; Appointment of
Successor.
(a) 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 611.
(b) The Trustee may resign at any time with respect to
the Debt Securities of one or more series by giving written
notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the 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 the Debt Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Debt Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under
Section 609 with respect to any series of Debt Securities
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting
with respect to any series of Debt Securities or a decree or
order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Trustee
in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of
its property or affairs, or any public officer shall take
charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(3) the Trustee shall commence a voluntary case
under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator or
other similar official of the Trustee or its property or
affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to such series or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Debt
Security of any 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 for the
Debt Securities of such series and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Debt
Securities, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Debt Securities or one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt
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 Debt
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Debt Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Debt Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Debt Securities of any series shall have been so appointed
by the Company or the Holders and accepted anointment in the
manner hereinafter provided, any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months
may, subject to Section 514, 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 the
Debt Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Debt
Securities of any series and each appointment of a successor
Trustee with respect to the Debt Securities of any series by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security
Register and, if Debt 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 Debt Securities of such
series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a
successor Trustee with respect to all Debt 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 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; but, on request of the
Company or the 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 the retiring Trustee, and shall duly assign, transfer
and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Debt Securities of one or
more (but not all) series, the Company, the retiring Trustee upon
payment of its charges, and each successor Trustee with respect
to the Debt Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) 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 Debt Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Debt
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
Debt 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 (3) 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
Debt Securities of that or those series to which the appointment
of such successor Trustee relates; but, on the 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 Debt Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) 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 (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
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 such corporation shall be
otherwise qualified and eligible under this Article, without the
executing or filing of any paper or any further act on the part
of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims
Against Company.
(a) Subject to Subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three
months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually,
the Holders of the Debt Securities and coupons and the holders of
other indenture securities (as defined in Subsection (c) of this
Section):
(1) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three-month period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a voluntary or involuntary case had
been commenced in respect of the Company under the Federal
bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such
default; and
(2) all property received by the Trustee in
respect of any claims as such creditor, either as security
therefor, or in satisfaction or composition thereof, or
otherwise, after the beginning of such three-month period,
or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account
(i) payments made on account of any such claim by any
Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such
claim by the Trustee to a third Person, and
(iii) distributions made in cash, securities or other
property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws,
as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or
other similar law;
(B) to realize, for its own account, upon
any property held by it as security for any such claim
if such property was so held prior to the beginning of
such three-month period;
(C) to realize, for its own account, but
only to the extent of the claim hereinafter mentioned,
upon any property held by it as security for any such
claim, if such claim was created after the beginning of
such three-month period and such property was received
as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a
default as defined in Subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred
to in paragraph (B) or (C), against the release of any
property held as security for such claim as provided in
paragraph (B) or (C), as the case may be, to the extent
of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three-month
period for property held as security at the time of
such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing claim of
the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders and
the holders of other indenture securities in such manner that the
Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, the same percentage
of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the
Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends
on claims filed against the Company in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other
similar law, but after crediting thereon receipts on account of
the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and
property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, whether such distribution is
made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured
portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is
pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in
part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such
special account or as security for any such claim, or
to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise
to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after
the beginning of such three-month period shall be subject to the
provisions of this Subsection as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only
if the following conditions exist:
(i) the receipt of property or reduction of
claim, which would have given rise to the obligation to
account, if such Trustee had continued as Trustee, occurred
after the beginning of such three-month period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
Subsection (a) of this Section a creditor relationship arising
from
(1) the ownership or acquisition of securities
issued under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Holders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of
services rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a cash
transaction as defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities
of a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make
payment in full of the principal of or interest on any of
the Debt Securities or upon the other indenture securities
when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (i) under which the Trustee is
also trustee, (ii) which contains provisions substantially
similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of
the funds and property held in such special account.
(3) The term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made seven days after delivery of the goods or
securities in currency or in checks or other orders drawn
upon banks and payable upon demand.
(4) The term "self-liquidating paper" means any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx
of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the
Debt Securities.
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or
more authenticating agents (including, without limitation, the
Company or any Affiliate thereof) with respect to one
or more series of Debt Securities which shall be authorized on
behalf of the Trustee in authenticating Debt Securities of such
series in connection with the issue, delivery, registration of
transfer, exchange, partial redemption or repayment of such Debt
Securities. Wherever reference is made in this Indenture to the
authentication on behalf of the Trustee by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed
on behalf of the Trustee by an authenticating agent. Each
authenticating agent must be acceptable to the Company and must
be a corporation organized and doing business under the laws of
the United States or of any State, having a principal office in
the Commonwealth of Pennsylvania or the Borough of Manhattan, The
City of New York, having a combined capital surplus of at least
$1,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority in the case of an
authenticating agent who is not organized and doing business
under the laws of the United States or of any State thereof or
the District of Columbia.
Any corporation succeeding to the corporate agency
business of an authenticating agent shall continue to be an
authenticating agent without the execution or filing of any paper
or any further act on the part of the Trustee or such
authenticating agent.
An authenticating agent may at any time resign with
respect to one or more series of Debt Securities by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
authenticating agent with respect to one or more series of Debt
Securities by giving written notice of termination to such
authenticating agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee
promptly may appoint a successor authenticating agent. Any
successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers and duties
of its predecessor hereunder, with like effect as if originally
named as an authenticating agent herein. No successor
authenticating agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each authenticating agent
from time to time reasonable compensation for its services under
this Section, subject to the provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604
and 605 shall be applicable to any authenticating agent.
Pursuant to each appointment made under this Section,
the Debt Securities of each series covered by such appointment
may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK
By_________________________________
As Authenticating Agent for
the Trustee
By_________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to
the Trustee with respect to Debt Securities of each series for
which it acts as Trustee:
(1) semi-annually, not more than 15 days after
the Regular Record Date in respect of the Debt Securities of
such series or on June 30 and December 31 of each year with
respect to each series of Debt Securities for which there
are no Regular Record Dates, a list, in such form as the
Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities as of such Regular
Record Date or June 15 or December 15, as the case may be,
and
(2) At such other times as the Trustee may
request in writing, within 30 days after the 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 furnished.
provided, however, that if and so long as the Trustee shall be
the Security Registrar, no such list need be furnished.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
of Registered Securities contained in the most recent list
furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or
Security Registrar,if so acting. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a
new list so furnished. The Trustee shall preserve for at least
two years the names and addresses of Holders of Bearer Securities
filed with the Trustee pursuant to Section 703(c).
(b) If three or more Holders of Debt Securities of any
series (hereinafter referred to as "applicants") apply in writing
to the Trustee, and furnish to the Trustee proof that each such
applicant has owned a Debt Security 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 Debt Securities of such series (in which case
the applicants must hold Debt Securities of such series) or with
all Holders of Debt Securities with respect to their rights under
this Indenture or under the Debt 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
(i) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 702(a), or
(ii) inform such applicants as to the approximate
number of Holders of Debt Securities of such series or of
all Debt 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 702(a), and as to the
approximate time 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 whose
name and address appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), 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 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 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 applications.
(c) Every Holder of Debt Securities or coupons, 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 in accordance with
Section 702(b), 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 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the year 1994, the Trustee shall transmit by mail
to all Holders of Debt Securities of any series with respect to
which it acts as Trustee, as provided in Subsection (c) of this
Section, a brief report dated as of such May 15 with respect to
any of the following events which may have occurred within the
previous twelve months (but if no such event has occurred within
such period, no report need be transmitted):
(1) any change to its eligibility under
Section 609 and its qualifications under Section 608;
(2) the character and amount of any advances (and
if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such)which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of such series
or any related coupons, on any property or funds held or
collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more than
1/2% of the principal amount of the Outstanding Debt
Securities of such series on the date of such report;
(3) the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other
obligor on the Debt Securities of such series) to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except an indebtedness based
upon a creditor relationship arising in any manner
described in Section 613(b)(2), (3), (4) or (6);
(4) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(5) any additional issue of Debt Securities which
the Trustee has not previously reported; and
(6) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Debt Securities, except action in respect of a
default, notice of which has been or is to be withheld by
the Trustee in accordance with Section 602;
provided, however, that if the Trust Indenture Act is amended
subsequent to the date hereof to eliminate the requirement of the
Trustee's brief report, the report required by this Section need
not be transmitted to any Holders.
(b) The Trustee shall transmit by mail to all Holders
of Debt Securities of any series for which it acts as the
Trustee, as provided in Subsection (c) of this Section, a brief
report with respect to the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to
Subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of execution of this instrument)
for the reimbursement of which it claims or may claim a right or
charge, prior to that of the Debt Securities of such series, on
property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this Subsection,
except that the Trustee for each series shall not be required
(but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the
principal amount of the Debt Securities of such series
Outstanding at such time, such report to be transmitted within
90 days after such time.
(c) Reports pursuant to this Section shall be
transmitted by mail:
(1) to all Holders of Registered Securities, as
the names and addresses of such Holders appear in the
Security Register;
(2) to such Holders of Bearer Securities as have,
within the two years preceding such transmissions, filed
their names and addresses with the Trustee for that purpose;
and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a Debt
Security whose name and address is preserved at the time by
the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Debt Securities of such series are
listed, with the Commission and also with the Company. The
Company will notify the Trustee when any series of Debt
Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company will:
(a) 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;
(b) 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
(c) transmit by mail to all Holders of Debt
Securities, in the manner and to the extent provided in
Section 703(c) with respect to reports pursuant to
Section 703(a), 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 (1)
and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into
any other corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United
States of America, any political subdivision thereof or any State
thereof and 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 (and premium, if any) and interest (including all
additional amounts, if any, payable pursuant to Section 1006) on
all the Debt Securities and any related coupons and the
performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or lease and,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety
in accordance with Section 801, the successor corporation formed
by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease 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 had been named as the Company herein, and
thereafter, except in the case of a lease, the Company (which
term for this purpose shall mean the Person named as the
"Company" in the first paragraph of this instrument or any
successor corporation which shall theretofore have become such in
the manner presented in this Article) shall be relieved of all
obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent
of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter onto one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
PS\ to evidence the succession of another
corporation to the Company, and the assumption by such
successor of the covenants of the Company herein and in the
Debt Securities contained; or
(2) to add to the covenants of the Company, for
the benefit of the Holders of all or any series of Debt
Securities or coupons (and if such covenants are to be for
the benefit of less than all series of Debt Securities, or
coupons stating that such covenants are expressly being
included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or with
the Trustee, or to surrender any right or power herein
conferred upon the Company; or
(3) to add to any additional Events of Default
(and if such Events of Default are to be applicable to less
than all series of Debt Securities, stating that such Events
of Default are expressly being included solely to be
applicable to such series); or
(4) 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 (or
premium, if any) on Registered Securities or of principal
(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
Debt Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the
Holders of Debt Securities of any series or any related
coupons in any material respect; or
(5 of this Indenture, provided that any such
change or
elimination (a) shall become effective only when there is no
Debt Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision or (b) shall not apply to
any Debt Security Outstanding; or
(6) to establish the form or terms of Debt
Securities of any series as permitted by Sections 201 and
301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Debt Securities of one or more series 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
the requirements of Section 611(b); or
(8) to evidence any changes to Section 608, 609
or 703(a) permitted by the terms thereof; or
(9) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent
with any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the
Holders of Debt Securities of any series or any related
coupons in any material respect; or
(10) 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 the Debt Securities of any
series or any appurtenant coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than
66-2/3% in principal amount of the Outstanding Debt Securities of
each series affected by such supplemental indenture, 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 under this
Indenture of such Debt Securities of such series and any related
coupons; provided, however, that an indenture supplemental hereto
which changes the required ownership set forth in the definition
of Controlled Subsidiary in Section 101 hereof from 80% to a
majority but does not change any other provision of this
Indenture or modify in any other manner the rights of the Holders
of all the Debt Securities under this Indenture may be entered
into with the consent of the Holders of at least a majority in
principal amount of the Outstanding Debt Securities of each
series; and provided, further, that no such supplemental
indenture shall, without the consent of the Holder of
each Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal
or any installment of principal of, or any installment of
interest on, any Debt Security, or reduce the principal
amount thereof or the interest hereon or any premium payable
upon redemption or repayment thereof, or change any
obligation of the Company to pay additional amounts pursuant
to Section 1006 (except as contemplated by Section 801(1)
and permitted by Section 901(1)), 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 502, or change
any Place of Payment, or the coin or currency in which any
Debt Security or the interest thereon or any coupon is
payable, or impair any right to the delivery of Capital
Securities in exchange for Debt Securities provided for in
this Indenture or the right to institute suit for the
enforcement of any such payment or delivery on or after the
Stated Maturity thereof (or, in the case of redemption,
repayment or exchange, on or after the Redemption Date,
Repayment Date or Capital Exchange Date, as the case may
be); or
(2) reduce the percentage in principal amount of
the Outstanding Debt 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 (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1604 for quorum or voting; or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1007, or the
deletion of this provision, in accordance with the
requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if
any, of Debt Securities of any series at the option of the
Holders thereof; or
(5) impair the right of any Holder of Debt
Securities of any series to receive Capital Securities on
any Capital Exchange Date for Debt Securities of such series
with a Market Value equal to the principal amount of such
Holder's Debt Securities of such series or in an
amount sufficient to provide proceeds upon sale by the
Company in the Secondary Offering equal to the principal
amount of such Holder's Debt Securities of such series; or
(6) impair the right of any Holder of Convertible
Securities of any series to convert such Debt Securities
pursuant to Article Nineteen;
and provided, further, that no change shall be made in the
provisions of Article Eighteen that will affect adversely the
holders of Senior Debt without the consent of the holders of all
Senior Debt Outstanding.
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 Debt Securities, or which modifies the
rights of the Holders of Debt 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 Debt
Securities of any other series.
It shall not be necessary for any Act of Holders of the
Debt Securities 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 903. 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 trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. 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 Debt
Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound
thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 906. Reference in Debt Securities to
Supplemental Indenture.
Debt Securities of any series 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 Debt Securities of any series and
any appurtenant coupons so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities of such series and any
appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of
each series of Debt Securities and any appurtenant coupons that
it will duly and punctually pay the principal of (and premium, if
any) and interest on the Debt Securities and any appurtenant
coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on
Bearer Securities on or before Maturity, other than additional
amounts, if any, payable as provided in Section 1006 in respect
of principal of (or premium, if any, on) such a Debt Security,
shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced
thereby as they severally mature. For all purposes of this
Indenture, the exchange of Capital Securities for Debt Securities
of any series pursuant to the Indenture shall constitute full
payment of principal of the Debt Securities of such series being
exchanged on any Capital Exchange Date for Debt Securities of
such series, without prejudice to any Holder's rights pursuant to
Section 1413.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for
any series of Debt Securities an office or agency where Debt
Securities (but, except as otherwise provided below, unless such
Place of Payment is located outside the United States, not Bearer
Securities) may be presented or surrendered for payment, where
Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon
the Company in respect of the Debt Securities and this Indenture
may be served. If Debt Securities of a series are issuable as
Bearer Securities, the Company will maintain, subject to any laws
or regulations applicable thereto, an office or agency in a Place
of Payment for such series which is located outside the United
States where Debt Securities of such series and the related
coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Debt Securities of
such series pursuant to Section 1006); provided, however, that if
the Debt Securities of such series are listed on the Stock
Exchange of the United Kingdom and the Republic of Ireland 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 in London or
Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Debt Securities of
such series are listed on such exchange. 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 or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee its agent to receive
all presentations, surrenders, notices and demands, 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 1006) at the place specified for the purpose
pursuant to Section 301(5).
No payment of principal of, 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 other 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 301 with respect to any series of Debt
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 (in or outside of such Place of
Payment) where the Debt Securities of one or more series and any
appurtenant coupons (subject to the preceding paragraph) may be
presented or surrendered for any or all such purposes, and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain an office or
agency in each Place of Payment for any series of Debt
Securities, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any
change in the location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be
held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Debt Securities, it will, on
or before each due date of the principal of (and premium, if any)
or interest on any of the Debt 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 (and premium, if any) 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 to so act.
Whenever the Company shall have one or more Paying
Agents with respect to any series of Debt Securities, it will
prior to each due date of the principal of (and premium, if any)
or interest on any Debt Securities of such series and any
appurtenant coupons, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) 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 actions or failure to so act.
The Company will cause each Paying Agent with respect
to any series of Debt Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which Paying
Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on Debt
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;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debt Securities of
such series or any appurtenant coupons) in the making of any
payment of principal of (and premium, if any) or interest on
the Debt Securities of such series or any appurtenant
coupons; and
(3) 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
terminating its obligations under this Indenture with respect to
Debt Securities of any series 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 payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with
respect to such money.
Any principal and interest received on the Eligible
Instruments deposited with the Trustee or 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 (and
premium, if any) or interest on any Debt Security of any series
or any appurtenant coupon or any money on deposit with the
Trustee or any Paying Agent representing amounts deducted from
the Redemption Price or Repayment Price with respect to unmatured
coupons not presented upon redemption or exercise of the Holder's
option for repayment pursuant to Section 1106 or 1303 and
remaining unclaimed for two years after such principal (and
premium, if any) 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 Debt 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 (including the
principal and interest received on Eligible Instruments deposited
with the Trustee), 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 of general circulation
in the Borough of Manhattan, The City of New York, and each Place
of Payment or mailed to each such Holder, or both, 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 or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a
date not more than four months after the end of each fiscal year
of the Company (which on the date hereof is the calendar year)
ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture, and, if
the Company shall be in default, specifying all such defaults and
the nature thereof of which they may have knowledge.
SECTION 1005. Limitation on Disposition of Voting
Stock of, and Merger and Sale of Assets by, the Bank.
The Company will not:
(1) sell, transfer or otherwise dispose of any
shares of Voting Stock of the Bank or permit the Bank to
issue, sell or otherwise dispose of any shares of its Voting
Stock, unless, after giving effect to any such transaction,
the Bank remains a Controlled Subsidiary; or
(2) permit the Bank to
(a) merge or consolidate, unless the
surviving corporation is a Controlled Subsidiary; or
(b) convey or transfer its properties and
assets substantially as an entirety to any Person,
except to a Controlled Subsidiary.
SECTION 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the
payment of additional amounts, the Company will pay to the Holder
of any Debt Security of any series or any coupon appertaining
thereto additional amounts upon the terms and subject to the
conditions 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 Debt
Security of any series or any related coupon or the net proceeds
received on the sale or exchange of any Debt Security of any
series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such
Debt Securities and 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 Debt 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 Debt
Securities (or if the Debt 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 Debt Securities of that
series shall be made to Holders of Debt Securities of that series
or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other
governmental charge described in the Debt 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
Debt Securities or coupons and the Company will pay to the
Trustee or such Paying Agent the additional amounts, if any,
required by the terms of such Debt Securities and the first
paragraph of 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 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Section 1005,
with respect to the Debt Securities of any series if, before the
time for such compliance the Holders of at least 66 2/3% in
principal amount of the Debt Securities of such series at the
time Outstanding shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt 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 301 for Debt Securities of any series) in
accordance with this Article.
SECTION 4-3.S Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt
Securities shall be evidenced by an Officers' Certificate
authorized by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the
Debt Securities of any series, the Company shall, at least
45 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount
and the tenor and terms of the Debt Securities of any series to
be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Debt Securities
to Be Redeemed.
Except as otherwise specified as contemplated by
Section 301 for Debt Securities of any series, if less than all
the Debt Securities of any series with like tenor and terms are
to be redeemed, the particular Debt Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Debt Securities of such
series with like tenor and terms not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral
multiple thereof which is also an authorized denomination) of the
principal amount of Registered Securities or Bearer Securities
(if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized
denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for redemption and, in
the case of any Debt Securities 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
Debt Securities shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner
provided in Section 106 not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Debt Securities
to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities
of any series are to be redeemed, the identification (and,
in the case of partial redemption, the principal amount) of
the particular Debt Securities to be redeemed.
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such Debt
Security to be redeemed, and that interest thereon shall
cease to accrue on and after said date,
(5) the Place or Places of Payment where such
Debt Securities, together in the case of Bearer Securities
with all coupons, if any, appertaining thereto maturing
after the Redemption Date, are to be surrendered for payment
of the Redemption Price,
(6) that Bearer Securities may be surrendered for
payment only at such place or places which are outside the
United States, except as otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if
such is the case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by
Section 106 need not identify particular Registered Securities to
be redeemed.
Notice of redemption of Debt Securities to be redeemed
at the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall
deposit 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 1003) an amount of money
and/or, to the extent such Debt Securities to be redeemed are
denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without
reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of the Debt Securities to be redeemed)
will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in
trust with the Trustee, without investment) be sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall
be an Interest Payment Date) accrued interest on, all the Debt
Securities or portions thereof which are to be redeemed on that
date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Pay Agent or Paying Agents
located outside the United States except as otherwise provided in
Section 1002, unless otherwise specified as contemplated by
Section 301.
SECTION 1106. Debt Securities Payable on Redemption
Date.
Notice of redemption having been given as aforesaid,
the Debt 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 and accrued
interest) such Debt 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 Debt Security
for redemption in accordance with said notice, such Debt Security
shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest
(at an office or agency located outside the United States except
as otherwise provided in Section 1002), and provided further,
that 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 Debt Securities, or one or more
Predecessor Securities, registered as such on the relevant Record
Dates according to their terms and provisions of Section 307.
If any Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer 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 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
Redemption 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 upon
presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise
provided in Section 1002.
If any Debt Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Debt
Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in
part shall be surrendered at a Place of Payment therefor (with,
if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Debt Security without service charge, a new Registered Security
or Registered Securities of the same series and of like tenor and
terms, 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 Debt Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Debt Securities of a
series except as otherwise specified as contemplated by Section
301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Debt 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 term
of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of
Debt Securities of any series, the amount of any sinking fund
payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of
Debt Securities of any series as provided for by the terms of
Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments
with Debt Securities.
The Company (1) may deliver Outstanding Debt 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 (2) may apply as
a credit Debt Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Debt
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Debt Securities of
such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series;
provided that such Debt Securities have not been previously so
credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified
in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of
Debt Securities in lieu of cash payments pursuant to this
Section 1202, the principal amount of Debt Securities to be
redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment, provided, however, that the
Trustee or such Paying Agent shall at the request of the Company
from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon
delivery by the Company to the Trustee of Debt Securities
purchased by the Company having an unpaid principal amount equal
to the cash payment requested to be released to the Company.
SECTION 1203. Redemption of Debt Securities for
Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Debt Securities (unless a shorter
period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash, the portion
thereof, if any, which is to be satisfied by crediting Debt
Securities of that series pursuant to Section 1202 and the basis
for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the
Trustee any Debt Securities to be so credited and not theretofore
delivered to the Trustee. Not less than 30 days (unless a
shorter period shall be satisfactory to the Trustee) before each
such sinking fund payment date the Trustee shall select the Debt
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 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 1104.
Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated
in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt 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 301 for Debt Securities
of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt 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 301.
SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option
for repayment shall, as conditions to such repayment, surrender
the Debt 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 1002. Such notice, which shall be irrevocable, shall
specify the principal amount of such Debt Security to be repaid,
which shall be equal to the minimum authorized denomination for
such Debt Security or an integral multiple thereof, and shall
identify the Debt Security to be repaid and, in the case of a
partial repayment of the Debt Security, shall specify the
denomination or denominations of the Debt Security or Debt
Securities of the same series to be issued to the Holder for the
portion of the principal of the Debt 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 1002.
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, 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 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 Debt 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 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
Debt Securities shall relate, in the case of any Debt Security
repaid or to be repaid only in part, to the portion of the
principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. Election of Repayment by Remarketing
Entities.
The Company may elect, with respect to Debt 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, Debt
Securities of such series from the Holders thereof who give
notice and surrender their Debt Securities in accordance with
Section 1303.
SECTION 1305. Debt Securities Payable on the Repayment
Date.
Notice of exercise of the option of repayment having
been given and the Debt Securities so to be repaid having been
surrendered as aforesaid, such Debt Securities shall, unless
purchased in accordance with Section 1304, on the Repayment Date
become due and payable at the price therein specified and from
and after the Repayment Date such Debt 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 Debt Securities and shall be obligated
to pay interest on such principal amount at the rate borne by
such Debt Securities from time to time until payment in full of
such principal amount.
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article.
If an Officers' Certificate or supplemental indenture
pursuant to Section 301 provides for the exchange of Capital
Securities for Debt Securities of any series at the election of
the Company or otherwise, Debt Securities of such series shall be
exchanged for Capital Securities in accordance with their terms
and (except as otherwise specified in such Officers' Certificate
or supplemental indenture) in accordance with this Article.
SECTION 1402. Exchange of Capital Securities for Debt
Securities at Stated Maturity.
At the Stated Maturity of Debt Securities of any series
which may be exchanged, subject to prepayment prior to such
Stated Maturity on the Capital Exchange Date selected by the
Company for Debt Securities of such series, as described below,
early exchange pursuant to Section 1403 or payment in cash
pursuant to Section 502, 1416 or 1417, the Company shall exchange
Capital Securities with a Market Value equal to the principal
amount of the Outstanding Debt Securities of such series for the
Debt Securities of such series in whole.
The Company shall give notice in the manner provided in
Section 106 to Holders of the Debt Securities of any series to be
exchanged, the Trustee and the Capital Exchange Agent as to the
type of Capital Securities to be exchanged for the Debt
Securities of such series on the Capital Exchange Date for Debt
Securities of such series. Such notice shall include a form of
Capital Security Election Form substantially as set forth in
Section 1409, shall make the statements and contain the
information included in Section 1404(a), and shall be given no
less than 90 days prior to the Stated Maturity of such Debt
Securities. Notice of such Capital Exchange Date, together with
the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the
minimum denomination of the Debt Securities of such series, if
larger, shall also be given by the Company in the manner required
by Section 1404(b) not less than three Business days prior to
such Capital Exchange Date.
The Capital Exchange Date for any prepayment of Debt
Securities of each series may be selected by the Company to be
any date between a date 60 days prior to the Stated Maturity of
such Debt Securities and such Stated Maturity, inclusive, and to
be the date of the closing of the Secondary Offering for Debt
Securities of such series. In the event the Company fails to
effect such Secondary Offering, the Capital Exchange Date will be
the Stated Maturity of the Debt Securities of such series.
Notice of each such Capital Exchange Date, together with the
amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the
minimum denomination of the Debt Securities of such series, if
larger, shall also be given by the Company in the manner required
by Section 1404(b) not less than three Business days prior to
such Capital Exchange Date.
The Company will effect each Secondary Offering such
that the closing of the Secondary Offering will occur on the
Capital Exchange Date.
SECTION 1403. Right of Early Exchange of Capital
Securities for Debt Securities.
The Debt Securities of any series to be exchanged may
be exchanged at the election of the Company, as a whole or from
time to time in part, prior to the Stated Maturity thereof for
Capital Securities with a Market Value equal to the principal
amount of such Debt Securities on any early Capital Exchange
Date, together with accrued interest to such Capital Exchange
Date.
The Company shall give notice in the manner provided in
Section 106 to Holders of the Debt Securities of any series to be
exchanged, the Trustee and the Capital Exchange Agent not less
than 90 days nor more than 120 days prior to any early Capital
Exchange Date for Debt Securities of such series, which notice
shall include a form of Capital Security Election Form
substantially as set forth in Section 1409 and make the
statements and contain the information included in
Section 1404(a). Notice of each such early Capital Exchange
Date, together with the amount of Capital Securities being
exchanged for each $1,000 principal amount of Debt Securities of
such series, or the minimum denomination of such series, if
larger, shall also be given by the Company in the manner required
by Section 1404(b) not less than three Business days prior to
such early Capital Exchange Date.
The Company may at its option accelerate any such
Capital Exchange Date within the 60-day period prior to such
Capital Exchange Date by giving notice of such accelerated
Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of
Debt Securities of such series, or the minimum denomination of
such series, if larger, in the manner required by Section 1404(b)
not less than three Business days prior to such accelerated
Capital Exchange Date.
The Company will effect each Secondary Offering such
that the closing of such Secondary Offering will occur on the
Capital Exchange Date.
SECTION 1404. Notices of Exchange.
(a) All notices of exchange subject to this paragraph
shall state:
(1) the types of Capital Securities to be
exchanged for the Debt Securities of such series on the
Capital Exchange Date for Debt Securities of such series;
(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such
series being exchanged will receive on such Capital Exchange
Date accrued and unpaid interest in cash and may elect to
receive on such Capital Exchange Date Capital Securities
with a Market Value equal to the principal amount of the
Debt Securities of such series owned by such Holder and
that, in the absence of any such election by the Holder,
such Holder will be deemed to have received on such Capital
Exchange Date Capital Securities having such Market Value
and to have elected to have such Capital Securities sold for
such Holder by the Company in the related Secondary Offering
for cash proceeds to such Holder on such Capital Exchange
Date equal to the aggregate principal amount of all Debt
Securities of such series being exchanged owned by such
Holder;
(4) that on such Capital Exchange Date the
Capital Exchange Price will become due and payable upon each
such Debt Security to be exchanged and that
interest thereon will cease to accrue on and after said
date;
(5) if less than all Outstanding Debt Securities
of any series are to be exchanged, the identification and
principal amount of the particular Debt Securities to be
exchanged;
(6) that each Holder for whom Capital Securities
are being offered in the Secondary Offering shall be deemed
to have appointed the Company its attorney-in-fact to
execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary
Offering;
(7) (A) that the Company will assume, unless
advised to the contrary in writing within 30 days after the
date of the notice of exchange, that the Capital Securities
are to be offered for the account of the Holder, that such
Holder has not held any position, office of other material
relationship with the Company within three years preceding
the Secondary Offering, that the Holder owns no other
Capital Securities, and that after completion of the
Secondary Offering the Holder will own less than one percent
of the class of such Capital Securities, and (B) that if any
of these assumptions is not correct, the Holder shall
promptly so advise the Company;
(8) the Place or Places of Capital Exchange;
(9) that Bearer Securities may be surrendered for
payment or exchange only at a Place or Places of Capital
Exchange which are outside the United States, except as
otherwise provided in Section 1002; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph
shall be given in the manner provided in Section 106 to each
Holder of Debt Securities to be exchanged, and the Company shall
forthwith give such notice by telephone to the Trustee and the
Capital Exchange Agent, promptly confirmed in writing.
(c) (1) Except as may otherwise be specified
pursuant to Section 301 for Debt Securities of any series,
if less than all the Debt Securities of any series are to be
exchanged, the Company shall at least 135 days prior to the
related Capital Exchange Date (unless a shorter period shall
be satisfactory to the Trustee) notify the Trustee of such
Capital Exchange Date and of the principal amount of Debt
Securities of such series to be exchanged and the particular
Debt Securities to be exchanged shall be selected not more
than 135 days prior to the related Capital Exchange Date by
the Trustee, from the Outstanding Debt Securities
of such series not previously exchanged, by such method as
the Trustee shall deem fair and appropriate and which may
provide for the selection for exchange of portions (equal to
the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the
principal amount of Registered or Bearer Securities of such
series of a denomination larger than the minimum authorized
denomination for Debt Securities of such series.
In any case where Debt Securities of such series are
registered in the same name, the Trustee in its discretion may
treat the aggregate principal amount so registered as if it were
represented by one Debt Security of such series.
(2) The Trustee shall promptly notify the Company
in writing of the Debt Securities selected for exchange and,
in the case of any Debt Securities selected for partial
exchange, the principal amount thereof to be exchanged.
(3) For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to
the exchange of Debt Securities shall relate, in the case of
any Debt Securities exchanged or to be exchanged only in
part, to the portion of the principal amount of such Debt
Security which has been or is to be exchanged.
SECTION 1405. Rights and Duties of Holders of Debt
Securities to be Exchanged for Capital Securities.
(a) Subject to Section 503, and without prejudice to
the rights pursuant to Section 1413 of Holders of Debt Securities
of any series to be exchanged, no Holder of Debt Securities of
such series shall be entitled to receive any cash from the
Company on any Capital Exchange Date or at the Stated Maturity of
any Debt Security of such series except from the proceeds of the
sale of such Holder's Capital Securities in the related Secondary
Offering and except as provided herein with respect to fractional
Capital Securities, amounts equal to expenses of the sale in the
related Secondary Offering of such Capital Securities, accrued
and unpaid interest and acceleration upon an Event of Default.
In the event that the Company does not effect such Secondary
Offering, such Holder will receive Capital Securities with a
Market Value equal to the principal amount of Debt Securities of
such series owned by such Holder which are subject to such
exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without
prejudice to such Holder's rights pursuant to Section 1413.
(b) Each Holder for whom Capital Securities are being
offered in the Secondary Offering shall be deemed to have
appointed the Company its attorney-in-fact to execute any and all
documents and agreements the Company deems necessary or
appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within
30 days following the date of the notice described in
Section 1404(a) by any Holder for whom Capital Securities are
being offered in the Secondary Offering, the Company shall assume
for the purposes of any Secondary Offering that the Capital
Securities are to be offered for the account of such Holder, that
such Holder has not held any position, office or other material
relationship with the Company within three years preceding the
Secondary Offering, that such Holder owns no other Capital
Securities, and that after completion of the Secondary Offering
such Holder will own less than one percent of the class of such
Capital Securities.
(d) Each Holder for whom Capital Securities are being
offered in the Secondary Offering agrees to indemnify and hold
harmless the Company, any other Holder, and any underwriter,
agent or other similar person from and against any and all
losses, claims, damages and liabilities resulting from or based
upon any untrue statement or alleged untrue statement of any
material fact contained in any notice of exchange, any offering
memorandum or selling document or registration statement relating
to the Secondary Offering, any preliminary prospectus or
prospectus contained therein, or any amendment thereof or
supplement thereto, or resulting from or based upon the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, which untrue statement, alleged untrue statement,
omission or alleged omission is made therein (i) in reliance upon
and in conformity with any written information furnished to the
Company by or on behalf of any such Holder specifically for use
in connection with the preparation thereof or (ii) because of
such Holder's failure to advise the Company in writing that any
of the assumptions described in Section 1404(a)(7)(A) and
Subsection (c) of this Section is incorrect;
(e) In order for any Holder who has duly returned a
Capital Security Election Form to receive Capital Securities on
any Capital Exchange Date for any Debt Security of any series,
(1) the Holder of any Registered Security to be exchanged shall
surrender such Debt Security (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder of any Registered Security or his
attorney duly authorized in writing), to the Capital Exchange
Agent on the Capital Exchange Date, and (2) the Holder of any
Bearer Security to be exchanged shall surrender such Debt
Security and all unmatured coupons and all matured coupons in
default with the Capital Security Election Form at a Place of
Capital Exchange outside the United States designated pursuant to
Section 1404(a)(8) except as otherwise provided in Section 1002.
If the Holder of a Bearer Security is unable to produce any such
Debt Security or coupons, the surrender of such Debt Security 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 Capital Exchange Agent
harmless in respect of such Debt Security or coupons. Except as
provided in Section 307, no payment or adjustment shall be made
upon any exchange on account of any interest accrued on any Debt
Securities surrendered for exchange or on account of any
dividends or interest on the Capital Securities issued upon
exchange.
(f) Debt Securities of any series to be exchanged
shall be deemed to have been exchanged on the Capital Exchange
Date therefor in accordance with the foregoing provision, and at
such time the rights of the Holders of such Debt Securities as
Holder shall cease (subject to the provisions of Section 307 and
without prejudice to the rights of Holders of Debt Securities of
such series pursuant to Section 1413), and the Person or Persons
entitled to receive the Capital Securities issuable upon such
exchange shall be treated for all purposes as the record holder
or holders of such Capital Securities at such time.
SECTION 1406. Election to Exchange.
The election of the Company to exchange Capital
Securities for Debt Securities pursuant to Section 1403 shall be
evidenced by a Board Resolution.
SECTION 1407. Deposit of Capital Exchange Price.
On any Capital Exchange Date for Debt Securities of any
series which may be exchanged, the Company shall deposit with the
Trustee or with a Capital Exchange Agent in the Borough of
Manhattan, The City of New York (or, of the Company is acting as
Capital Exchange Agent, segregate and hold in trust as provided
in Section 1003) Capital Securities and an amount of money which
together are sufficient to pay the Capital Exchange Price of, and
(except if such Capital Exchange Date shall be an Interest
Payment Date) accrued interest on, all the Debt Securities of
such series or portions thereof which are to be exchanged on that
date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Capital Exchange Agent or Capital
Exchange Agents, located outside the United States except as
otherwise provided in Section 1002, unless otherwise specified as
contemplated by Section 301.
SECTION 1408. Debt Securities Due on Capital Exchange
Date; Debt Securities Exchanged in Part.
Notice of exchange having been given as aforesaid, the
Debt Securities of any series so to be exchanged shall, on the
Capital Exchange Date for such Debt Securities, become due and
payable at the Capital Exchange Price therein specified, and from
and after such date (unless the Company shall default in the
payment of the Capital Exchange Price and accrued interest) Debt
Securities of such series to be exchanged shall cease to bear
interest and the coupons for such interest appertaining to any
Bearer Securities so to be exchanged, except to the
extent provided below, shall be void. Upon surrender of any Debt
Security of such series for exchange in accordance with said
notice, such Debt Security shall be paid by the Company at the
Capital Exchange Price, together with accrued interest to the
Capital Exchange Date; provided, however, that if such Capital
Exchange Date is an Interest Payment Date, the interest payable
on such date shall be paid to the Holder of Debt Securities of
such series according to the terms of the Debt Securities of such
series and the provisions of Section 307; and provided further,
that exchanges of Bearer Securities shall be made only and
installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Capital Exchange Date shall be
payable only at an office or agency located outside the United
States except as otherwise provided in Section 1002 and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Bearer Securities and
coupons.
If any Bearer Security surrendered for exchange shall
not be accompanied by all unmatured coupons and all matured
coupons in default such Bearer Security may be paid after
deducting from the Capital Exchange Price an amount equal to the
face amount of all missing coupons, or the surrender of such
missing 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 Capital Exchange Agent
harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or Capital Exchange Agent any such
missing coupon in respect of which a deduction shall have been
made from the Capital Exchange Price, such Holder shall be
entitled to received the amount so deducted; provided, however,
that interest on Bearer Securities shall be payable only at an
office or agency located outside of the United States except as
otherwise provided in Section 1002.
If any Debt Security of any series called for exchange
shall not be so paid or exchanged upon surrender thereof for
exchange, the principal shall, until paid, bear interest from
such Capital Exchange Date at the rate or rates prescribed
therefor in such Debt Security; provided, however, that in the
case of Bearer Securities, any such principal and interest
thereon shall be paid at an office or agency located outside the
United States except as otherwise provided in Section 1002.
Any Registered Security which is to be exchanged only
in part shall be surrendered as provided herein (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing) and the Company shall
execute, the Trustee shall authenticate and there shall be
delivered to the Holder of such Debt Security without service
charge a new Registered Security or Securities of the same
series, of any authorized denomination or denominations
as requested by such Holder in aggregate principal amount equal
to and in exchange for the unexchanged portion of principal of
the Debt Security so surrendered.
Any Bearer Security which is to be exchanged only in
part shall be surrendered as provided herein and the Company
shall execute, the Trustee shall authenticate and there shall be
delivered to the Holder of such Debt Security without service
charge a new Registered Security or Securities or new Bearer
Security or Securities (and all appurtenant unmatured coupons and
coupons in default) or any combination thereof of the same
series, of any authorized denomination or denominations as
requested by such Holder in aggregate principal amount equal to
and in exchange for the unexchanged portion of principal of the
Debt Security so surrendered; provided, however, 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 in exchange for
Bearer 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 then
in effect and the Company has delivered to the Trustee a Company
Order directing the Trustee not to make such exchanges thereafter
unless and until the Company delivers to the Trustee a subsequent
Company Order to the contrary. The Company shall deliver copies
of such Company Orders to the Security Registrar.
SECTION 1409. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be
substantially as follows with such additions, deletions, or
changes thereto as may be approved by the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses of
Capital Exchange Agents]
The undersigned Holder of [insert title of Debt
Security] ("Debt Securities") of Sovereign Bancorp, Inc. hereby
elects to receive on the Capital Exchange Date determined
pursuant to the Indenture dated as of __________________, 1999
("Indenture"), between Sovereign Bancorp, Inc. and Xxxxxx Trust
and Savings Bank, as Trustee, and referred to in the notice of
exchange published or delivered to the undersigned with this
Capital Security Election Form, Capital Securities of Sovereign
Bancorp, Inc. with a Market Value equal to the principal amount
of the Debt Securities being exchanged owned by the undersigned
Holder and, in the case of Bearer Securities, delivered herewith
together with all coupons appertaining thereto. Unless this
Capital Security Election Form together with, in the case of
Bearer Securities, such Bearer Securities and coupons,
is received by any Capital Exchange Agent named above at an
address shown above on or prior to ___________, the Holder will
be deemed to have elected to participate in the sale of the
Holder's Capital Securities in the Secondary Offering and will
receive cash on the Capital Exchange Date in an amount equal to
the principal amount of all Debt Securities being exchanged owned
by the Holder. All terms used herein and not otherwise defined
herein shall have the meanings specified in the Indenture.
Dated ___________________ ___________________________________
Name of Holder
Section 1410. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon
exchange for any Debt Securities. If more than one Debt Security
of any series shall be surrendered for exchange at one time by
the same Holder, the amount of all Capital Securities which shall
be issuable upon exchange thereof shall be computed on the basis
of the aggregate principal amount of Debt Securities of such
series so surrendered. In lieu of issuing any fractional Capital
Security, the Company shall pay a cash adjustment in respect of
such fraction in an amount equal to the same fraction of the
Market Value of the Capital Security.
Section 1411. Company to Obtain Governmental and
Regulatory Approvals.
The Company covenants that if any Capital Securities
required to be exchanged for Debt Securities hereunder require
registration with or approval of any governmental authority under
any federal or state law, of any national securities exchange,
before such Capital Securities may be issued, the Company will in
good faith and as expeditiously as possible endeavor to cause
such Capital Securities to be duly registered or approved, as the
case may be; provided, however, that nothing in this Section
shall be deemed to affect in any way the obligation of the
Company to exchange Capital Securities for Debt Securities as
provided in this Article.
SECTION 1412. Taxes on Exchange.
The Company will pay any and all transfer, stamp or
similar taxes that may be payable in respect of the issue or
delivery of Capital Securities in exchange for Debt Securities
pursuant hereto.
SECTION 1413. Covenants as to Capital Securities and
Secondary Offering.
(a) The Company covenants that it will issue, or cause
to be issued, Capital Securities of the type, in the amounts and
at the times required by this Indenture.
(b) The Company covenants that all Capital Securities
which may be issued in exchange for Debt Securities will upon
issuance be duly and validly issued and, if applicable, fully
paid and nonassessable.
(c) The Company unconditionally undertakes to sell
Capital Securities in each Secondary Offering (and to bear all
expenses of each Secondary Offering, including underwriting
discounts and commissions) at the times and in the manner
required by this Indenture unless all Holders have duly elected
to receive Capital Securities on the related Capital Exchange
Date.
(d) The Company agrees to indemnify and hold harmless
in connection with any Secondary Offering any Holder for the
account of whom Capital Securities are being offered and sold
from and against any and all losses, claims, damages and
liabilities resulting from or based upon any untrue statement or
alleged untrue statement of any material fact contained in any
notice of exchange, any offering memorandum or selling document
or registration statement relating to the Secondary Offering, any
preliminary prospectus or prospectus contained therein, or any
amendment thereof or supplement thereto, or resulting from or
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or resulting from the
Company's failure to comply with Section 1411; provided, however,
the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement, alleged untrue
statement, omission or alleged omission made therein (i) in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder
specifically for use in connection with the preparation thereof
or (ii) because of such Holder's failure to advise the Company in
writing that any of the assumptions described in Section
1404(a)(7)(A) is incorrect. In connection with any Secondary
Offering, the Company agrees to obtain appropriate
indemnification of any Holder for the account of whom Capital
Securities are being offered and sold in any Secondary Offering
from any underwriter, agent or other similar person.
SECTION 1414. Provision in Case of Consolidation,
Merger or Transfer of Assets.
In case of any consolidation of the Company with, or
merger of the Company into, any other corporation (other than a
consolidation or merger in which the Company is the continuing
corporation), or in case of any conveyance or transfer of the
properties and assets of the Company substantially as an
entirety, the corporation formed by such consolidation or the
corporation into which the Company shall have been merged or the
corporation with shall have acquired such assets of the Company,
as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of
each Debt Security then Outstanding shall have the right
thereafter to receive securities of such successor on the Capital
Exchange Date for such Debt Security with a Market Value equal to
the principal amount of such Debtor Security. The above
provisions of this Section shall similarly apply to successive
consolidations, mergers, conveyances or transfers.
SECTION 1415. Responsibility of Trustee.
The Trustee shall not at any time be under any duty or
responsibility to any Holder of Debt Securities of any series to
be exchanged to determine the Market Value of any Capital
Securities delivered in exchange for Debt Securities of such
series and may rely on and shall be entitled to receive prior to
any Capital Exchange Date for Debt Securities of such series an
Officers' Certificate of the Company as to the Market Value of
the Capital Securities being exchanged for the Debt Securities of
such series and the amount of Capital Securities being exchanged
for each $1,000 principal amount of Debt Securities of such
series or the minimum denomination of such series, if larger, and
that such Capital Securities qualify as Capital Securities under
the definition thereof contained herein. The Trust shall not be
accountable with respect to the validity or value (or the kind or
amount) of any Capital Securities which may at any time be issued
or delivered in exchange for any Debt Security; and the Trustee
does not make any representation with respect thereto. The
Trustee shall not be responsible for any failure of the Company
to issue, transfer or deliver any Capital Securities or Capital
Security certificates or other securities or property upon the
surrender of any Debt Security for the purpose of exchange or to
comply with any of the covenants of the Company contained in this
Article.
SECTION 1416. Revocation of Obligation to Exchange
Capital Securities for Debt Securities.
The Company's obligation to exchange Capital Securities
for Debt Securities of any series as provided in Section 1402 is
absolute and unconditional; provided, however, that such
obligation may be revoked at the option of the Company at any
time on not less than 60 days' prior notice given in the manner
provided in Section 106 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the
Company shall determine that under then regulations of the
Company's Primary Federal Regulator either the Debt Securities
are no longer includable as capital or it is no longer necessary
for the Company to be obligated to exchange Capital Securities
for Debt Securities in order for the Debt Securities to maintain
the same capital treatment as they are then receiving under such
regulations or if approval of the Primary Federal Regulator is
obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such
series in cash at 100% of the principal amount thereof on the
Stated Maturity thereof, and
(b) the Company may, at any time on or after a date
selected by the Company, on not less than 60 days' prior notice
given in the manner provided in Section 106 to the Holders of
Debt Securities of such series and the Trustee, redeem the Debt
Securities of such series, in whole or in part, for cash at 100%
of the principal amount thereof, plus accrued interest to the
Redemption Date.
SECTION 1417. Optional Securities Funds.
(a) (1) With respect to Debt Securities of any series
for which an Officers' Certificate or supplemental indenture
pursuant to Section 301 provides that the Debt Securities of
such series are exchangeable for Capital Securities, the
Company may elect to establish a fund (referred to herein as
the "Optional Securities Funds") to which funds may at any
time be designated by the Company as provided in
Section 1502 as if such Optional Securities Funds were
Securities Funds (as defined in Article Fifteen) to be used
to pay the principal of the Debt Securities of such series.
(2) Notwithstanding any provisions to the
contrary contained in this Indenture or in the Debt
Securities of any series, neither funds designated as
Optional Securities Funds nor any other property from time
to time held as Optional Securities Funds shall be deemed to
be for any purpose property of the Holders or trust funds
for the benefit of the Holders, and the Optional Securities
Funds shall not constitute security for the payment of the
Debt Securities.
(b) In lieu of, or in addition to, any exchange of
Capital Securities for Debt Securities of any series which may be
made in accordance with the provisions of Sections 1402 and 1403,
the Company may elect to redeem the Debt Securities of such
series in accordance with the provisions of Section 1106 and the
terms of the Debt Securities of each series, in whole or in part,
by paying the principal of such Debt Securities with funds
designated as Optional Securities Funds at a price equal to the
percentage of the principal amount established in the terms of
the Debt Securities of such series on the Redemption Date of the
Debt Securities to be so redeemed, and (except if such Redemption
Date shall be an Interest Payment Date) by paying accrued
interest on such Debt Securities. If such Redemption Date is an
Interest Payment Date, the interest payable on such date shall be
paid to the Holder of Debt Securities of such series according to
the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed
redemption in the manner provided in Section 106 to the Holders
of the Debt Securities of such series within the time prescribed
for the giving of the initial notice in Section 1402 or 1403,
depending upon the Redemption Date selected by the Company. Such
notice shall state the Redemption Date and the place or places
where the Debt Securities of the series to be paid are to be
surrendered for payment; provided, however, if such redemption is
of less than all of the Debt Securities of such series and is to
be made on a Capital Exchange Date specified in accordance with
Section 1402 or 1403, then such notice may be incorporated into
any initial notice of such Capital Exchange Date and provided
that no notice of any redemption may be given unless there are
sufficient Optional Securities Funds to pay the principal amount
of the Debt Securities to be redeemed.
(d) If less than all the Debt Securities of any series
are to be so redeemed, then Sections 1404(c) and 1408 shall apply
to the redemption in the same manner as if such Debt Securities
were to be exchanged for Capital Securities.
(e) Funds designated as Optional Securities Funds
shall be released from such designation under the circumstances
described in Section 1503.
ARTICLE FIFTEEN
Securities Funds
SECTION 1501. Creation of Securities Funds.
A fund (the "Securities Funds") will be established
when specified in an Officers' Certificate or supplemental
indenture pursuant to Section 1502, to be used to pay the
principal of the Debt Securities of that series.
Notwithstanding any provision to the contrary contained
in this Indenture or in the Debt Securities of any series,
neither funds designated as Securities Funds nor any other
property from time to time held as Securities Funds shall be
deemed to be for any purpose property of the Holders or trust
funds for the benefit of the Holders, and the Securities Funds
shall not constitute security for the payment of the Debt
Securities.
SECTION 1502. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to
(i) the net proceeds of the sale of Capital Securities for cash
from time to time after the date of initial issuance of the Debt
Securities of any series for which funds may be designated by the
Company as provided in this Section, and (ii) the market value,
as determined by the Company, of Capital Securities sold from
time to time after the date of initial issuance of the Debt
Securities of such series in exchange for other
property, less the expenses to effect any such exchanges, and
(iii) other funds which the regulations of the Primary Federal
Regulator then permit for the payment of principal of "mandatory
convertible securities (equity commitment notes or equity
contract notes)" as defined in such regulations; provided that
(x) the Company has designated such amounts as Securities Funds
on its books and records in the manner required by the Primary
Federal Regulator, and (y) there shall be deducted from the
Securities Funds an amount equal to the amount of any funds used
to redeem or repay the Debt Securities of such series for which
Securities Funds are required to be designated or any similar
securities.
SECTION 1503. Covenant of the Company to Obtain
Securities Funds.
Notwithstanding anything else contained herein, the
Company hereby covenants and agrees that with regard to the Debt
Securities of any series which by its terms require the
designation of Securities Funds (i) by the Interest Payment Date
which occurs on or next preceding the date when one-third of the
period from the date of issuance of the Debt Securities of such
series to their Stated Maturity has elapsed, it will have
obtained Securities Funds in an amount that will equal at least
one-third of the original aggregate principal amount of the Debt
Securities of such series (or such lesser amount as the Primary
Federal Regulator may permit from time to time) and will have
prepared and delivered to the Trustee an Officer's Certificate to
the foregoing effect, (ii) by the Interest Payment Date which
occurs on or next preceding the date when two-thirds of the
period from the date of issuance of the Debt Securities of such
series to their Stated Maturity has elapsed, it will have
obtained Securities Funds in the amount that will equal at least
two-thirds of the original aggregate principal amount of the Debt
Securities of such series (or such lesser amount as the Primary
Federal Regulator may permit from time to time) and will have
prepared and delivered to the Trustee an Officers' Certificate to
the foregoing effect, and (iii) by 60 days prior to the Stated
Maturity of the Debt Securities of such series, it will have
obtained Securities Funds in an amount that will equal not less
than the original aggregate principal amount of the Debt
Securities of such series (or such lesser amount as the Primary
Federal Regulator may permit from time to time) and will have
prepared and delivered to the Trustee an Officers' Certificate to
the foregoing effect; provided, however, that such covenant and
agreement of the Company shall be canceled, and amounts therefore
designated as Securities Funds will be released from such
designation in the event and to the extent that the Company shall
determine that under then regulations of the Company's Primary
Federal Regulator either the Debt Securities are no longer
includable as capital or it is no longer necessary for the
Company to be obligated to pay the principal of the Debt
Securities out of Securities Funds in order for the Debt
Securities to maintain the same capital treatment as
they are then receiving under such regulations, in the event and
to the extent that approval of the Primary Federal Regulator is
obtained for such cancellation and release or in the event and to
the extent that the Company shall have exchanged or redeemed such
Debt Securities pursuant to the terms of such Debt Securities of
such series from a source other than amounts designated as
Securities Funds.
ARTICLE SIXTEEN
Meetings of Holders of Debt Securities
SECTION 1601. Purposes for Which Meetings May Be
Called.
If Debt Securities of a series are issuable in whole or
in part as Bearer Securities, a meeting of Holders of Debt
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 Debt Securities of such series.
SECTION :\APP Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Debt Securities of any series issuable as Bearer
Securities for any purpose specified in Section 1601, to be held
at such time and at such place in the Borough of Manhattan, The
City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt 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 106, not less
than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) 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 Debt Securities of any series shall
have requested the Trustee to call a meeting of the Holders of
Debt Securities of such series for any purpose specified in
Section 1601, 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 for the notice
to 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 Debt
Securities of such series in the amount above specified, as the
case may be, may determine the time and place in the Borough of
Manhattan, The City of New York, or in London for such meeting
and may call such meeting for purposes by giving notice thereof
as provided in subsection (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Debt Securities of any series, a Person shall be (1) a Holder of
one or more Outstanding Debt 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 Debt 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 Debt 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 1604. Quorum; Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of a series shall
constitute a quorum for a meeting of Holders of Debt 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
not less than 66 2/3% in principal amount of the Outstanding Debt
Securities of a series, the Persons entitled to vote 66 2/3% in
principal amount of the Outstanding Debt 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 Debt
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
Section 1602(a), except than 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 Debt
Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 902, 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 Debt Securities of that
series, provided, however, that, except as limited by the
provisos to Section 902, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than 66 2/3% in principal amount
of the Outstanding Debt 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 66 2/3% in the principal amount of the
Outstanding Debt Securities of that series; and provided,
further, that, except as limited by the provisos to Section 902,
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 Debt
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
Debut Securities of that series.
Any resolution passed or decision taken at any meeting
of Holders of Debt Securities of any series duly held in
accordance with this Section shall be binding on all the Holders
of Debt Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1605. 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 Debt Securities
of such series in regard to proof of the holding of Debt
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
holder of Debt Securities shall be proved in the manner specified
in Section 104 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 104 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 104 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
Debt Securities as provided in Section 1602(b), in which case the
Company or the Holders of Debt 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 Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt 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 Debt 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
Debt 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 Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any
series duly called pursuant to Section 1602 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 Debt
Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting
of Holders of Debt Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Debt Securities of such series or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Debt 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 Debt 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 1602 and, if applicable,
Section 1604. 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
records so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE SEVENTEEN
Defeasance
SECTION 1701. Termination of Company's Obligations.
With respect to any series of Debt Securities, if the
Company deposits irrevocably in trust with the Trustee money
and/or, to the extent such Debt Securities are denominated and
payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without
reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of such Debt Securities) will provide
money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay principal (and premium, if any)
and interest when due on the Debt Securities of such series and
any coupons appertaining thereto and any mandatory sinking fund,
repayment or analogous payments thereon on the scheduled due
dates therefor at the Stated Maturity thereof, the Company's
obligations under Section 1005 shall terminate with respect to
the Debt Securities of the series for which such deposit was
made; provided, however, that (i) no Event of Default with
respect to the Debt Securities of such series under
Section 501(1) or 501(2) or event that with notice or lapse of
time or both would constitute such an Event of Default shall have
occurred and be continuing on such date and (ii) such termination
shall not relieve the Company of its obligations under the Debt
Securities of such series and this Indenture to pay when due the
principal of (and premium, if any) and interest and additional
amounts on such Debt Securities and any coupons appertaining
thereto if such Debt Securities or coupons are not paid (or
payment is not provided for) when due from the money and Eligible
Instruments (and the proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's
obligations with respect to the Debt Securities of any series
under Section 1005 pursuant to the provisions of this Section
that the Company deliver to the Trustee (i) an opinion of
nationally recognized independent tax counsel to the effect that:
(a) Holders of Debt Securities of such series and any coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and
termination and (b) such Holders (and future Holders) will be
subject to tax in the same amount, manner and timing as if such
deposit and termination has not occurred and (ii) an Officers'
Certificate to the effect that under the laws in effect on the
date such money and/or Eligible Instruments are deposited with
the Trustee, the amount thereof will be sufficient, after payment
of all Federal, state and local taxes in respect thereof payable
by the Trustee, to pay principal (and premium, if any) and
interest when due on the Debt Securities of such series and any
coupons appertaining thereto.
It shall be an additional condition to the deposit of
cash and/or Eligible Instruments and the termination of the
Company's obligations under Section 1005 pursuant to the
provisions of this Section, with respect to the Debt
Securities of any series then listed on the New York Stock
Exchange, that the Company deliver an Opinion of Counsel that the
Debt Securities of such series will not be delisted from the New
York Stock Exchange as a result of such deposit and termination.
After a deposit as provided herein, the Trustee shall,
upon Company Request, acknowledge in writing the discharge of the
Company's obligations with respect to the Debt Securities of such
series under Section 1005 pursuant to the provisions of this
Section.
SECTION 1702. Repayment to Company.
The Trustee and any Paying Agent shall pay to the
Company upon Company Request any money or Eligible Instruments
not required for the payment of the principal of (and premium, if
any) and interest on the Debt Securities of any series and any
related coupons for which money or Eligible Instruments have been
deposited pursuant to Section 1701 held by them at any time.
The Trustee and any Paying Agent shall pay to the
Company upon Company Request any money held by them for the
payment of principal (and premium, if any) and interest that
remains unclaimed for two years after the Maturity of the Debt
Securities for which a deposit has been made pursuant to Section
1701. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall
thereafter, as unsecured general creditors, look only to the
Company for the payment thereof.
SECTION 1703. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the deposited Eligible Instruments or the principal or
interest received on such Eligible Instruments.
ARTICLE EIGHTEEN
Subordination of Debt Securities
SECTION 1801. Debt Securities Subordinate to Senior
Debt.
The Company covenants and agrees that anything in this
Indenture or the Debt Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Debt
Securities of each series and any coupons appurtenant thereto is
subordinate and junior in right of payment to all Senior Debt to
the extent provided herein, and each Holder of Debt Securities of
each series and coupons appurtenant thereto, by such Holder's
acceptance thereof, likewise covenants and agrees to the
subordination herein provided and shall be bound by the
provisions hereof. Senior Debt shall continue to be
Senior Debt and entitled to the benefits of these subordination
provisions irrespective of any amendment, modification or waiver
of any term of the Senior Debt or extension or renewal of the
Senior Debt.
In the event that the Company shall default in the
payment of any principal of (or premium, if any) or interest on
any Senior Debt when the same become due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, then, upon written notice of such
default to the Company by the Holders of Senior Debt or any
trustee therefor, unless and until such default shall have been
cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest on any of the Debt
Securities, or in respect of any redemption, repayment,
retirement, purchase or other acquisition of any of the Debt
Securities.
In the event of
(a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other
similar proceeding relating to the Company, its creditors or its
property,
(b) any proceeding for the liquidation, dissolution or
other winding up of the Company, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of
creditors, or
(d) any other marshalling of the assets of the
Company,
all Senior Debt (including any interest thereon accruing after
the commencement of any such proceedings) shall first be paid in
full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any
of the Debt Securities or coupons appurtenant thereto on account
thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Debt Securities, to the payment of all Senior
Debt at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for these subordination
provisions) be payable or deliverable in respect of the Debt
Securities of any series or coupons appurtenant
thereto shall be paid or delivered directly to the Holders of
Senior Debt in accordance with the priorities then existing among
such Holders until all Senior Debt (including any interest
thereon accruing after the commencement of any such proceedings)
shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect
to Senior Debt, the Holders of the Debt Securities and coupons
appurtenant thereto, together with the Holders of any obligations
of the Company ranking on a parity with the Debt Securities,
shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of
unpaid principal of (and premium, if any) and interest on the
Debt Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall
be made on account of any capital stock or any obligations of the
Company ranking junior to the Debt Securities and such other
obligations.
In the event that, notwithstanding the foregoing, any
payment or distribution of any character or any security, whether
in cash, securities or other property (other than securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Debt Securities, to the payment of all Senior
Debt at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or
readjustment), shall be received by the Trustee or any Holder in
contravention of any of the terms hereof such payment or
distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay all such Senior Debt in
full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security,
each holder of Senior Debt is hereby irrevocably authorized to
endorse or assign the same.
No present or future holder of any Senior Debt shall be
prejudiced in the right to enforce subordination of the
indebtedness evidenced by the Debt Securities by any act or
failure to act on the part of the Company. Nothing contained
herein shall impair, as between the Company and the Holders of
Debt Securities of each series, the obligation of the Company to
pay to such Holders the principal of (and premium, if any) and
interest upon such Debt Securities and coupons appurtenant
thereto or prevent the Trustee or the Holder from exercising all
rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a default or Event of Default hereunder, all
subject to the rights of the holders of the Senior Debt to
receive cash, securities or other property otherwise
payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in
full unless the holders thereof shall have received cash,
securities or other property equal to the amount of such Senior
Debt then outstanding. Upon the payment in full of all Senior
Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of
any holders of Senior Debt to receive any further payments or
distributions applicable to the Senior Debt until the
indebtedness evidenced by the Debt Securities of such series and
coupons appertaining thereto, if any, shall have been paid in
full, and such payments or distributions received by such
Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to
the holders of Senior Debt, shall, as between the Company and its
creditors other than the holders of Senior Debt, on the one hand,
and such Holders, on the other hand, be deemed to be a payment by
the Company on account of Senior Debt, and not on account of the
Debt Securities of such series.
The Trustee and Holders will taken action (including,
without limitation, the delivery of this Indenture to an agent
for the holders of Senior Debt or consent to the filing of a
financing statement with respect hereto) as may, in the opinion
of counsel designated by the holders of a majority in principal
amount of the Senior Debt at the time outstanding, be necessary
or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 1801 shall not impair
any rights, interests, remedies or powers of any secured creditor
of the Company in respect of any security interest the creation
of which is not prohibited by the provisions of this Indenture.
The securing of any obligations of the Company,
otherwise ranking on a parity with the Debt Securities or ranking
junior to the Debt Securities, shall not be deemed to prevent
such obligations from constituting, respectively, obligations
ranking on a parity with the Debt Securities or ranking junior to
the Debt Securities.
SECTION 1802. Trustee and Holders of Debt Securities
May Rely on Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Debt; Trustee Not
Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the
Company referred to in this Article Eighteen, the Trustee and the
Holders shall be entitled to rely upon an order or decree made by
any court of competent jurisdiction in which such dissolution or
winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Eighteen.
In the absence of any such bankruptcy trustee, receiver, assignee
or other Person, the Trustee shall be entitled to rely upon a
written notice by a Person representing himself or herself to be
a holder of Senior Debt (or a trustee or representative on behalf
of such holder) as evidence that such Person is a holder of such
Senior Debt (or is such a trustee or representative). In the
event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as
holder of Senior Debt to participate in any payments or
distributions pursuant to this Article Eighteen, the Trustee may
request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held
by such Person, as to the extent to which such Person is entitled
to participate in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article
Eighteen, and if such evidence is not furnished, the Trustee may
offer any payment to such Person pending judicial determination
as to the right of such Person to receive payment. The Trustee,
however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt.
SECTION 1803. Payment Permitted if No Default.
Nothing contained in this Article Eighteen or elsewhere
in this Indenture, or in any of the Debt Securities, shall
prevent (a) the Company at any time, except during the pendency
of any dissolution, winding up, liquidation or reorganization
proceedings referred to in, or under the conditions described in,
Section 1801, from making payments of the principal of (or
premium, if any) or interest on the Debt Securities or (b) the
application by the Trustee or any Paying Agent of any moneys
deposited with it hereunder to payments of the principal of or
interest on the Debt Securities, if, at the time of such deposit,
the Trustee or such Paying Agent, as the case may be, did not
have the written notice provided for in Section 1804 of any event
prohibiting the making of such deposit, or if, at the time of
such deposit (whether or not in trust) by the Company with the
Trustee or any Paying Agent (other than the Company) such payment
would not have been prohibited by the provisions of this Article,
and the Trustee or any Paying Agent shall not be affected by any
notice to the contrary received by it on or after such date.
SECTION 1804. Trustee Not Charged with Knowledge of
Prohibition.
Anything in this Article Eighteen or elsewhere in this
Indenture contained to the contrary notwithstanding, the Trustee
shall not at any time be charged with knowledge of the existence
of any facts which would prohibit the making of any payment of
money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in
Section 1801 has happened, until the Trustee shall have received
an Officers' Certificate to that effect or notice in writing to
that effect signed by or on behalf of the holder or holders or
their representatives, of Senior Debt who shall have been
certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under the
indenture pursuant to which such Senior Debt shall be
outstanding. The Company shall give prompt written notice to the
Trustee and to the Paying Agent of any facts which would prohibit
the payment of money to or by the Trustee or any Paying Agent.
SECTION 1805. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such
Holder's acceptance thereof authorizes and directs the Trustee in
such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such
Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1806. Rights of Trustee as Holder of Senior
Debt.
The Trustee shall be entitled to all the rights set
forth in this Article with respect to any Senior Debt which may
at the time be held by it, to the same extent as any other holder
of Senior Debt, provided that nothing in this Article shall
deprive the Trustee of any rights as such holder and provided
further that nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1807. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
the Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1804 and
1806 shall not apply to the Company or any Affiliate of the
Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1808. Subordination Rights Not Impaired by
Acts or Omissions of the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior
Debt to enforce subordination as herein provided shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provision and
covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The
holders of Senior Debt may, at any time or from time to time and
in their absolute discretion, change the manner, place or terms
of payment, change or extend the time of payment of, or renew or
alter any such Senior Debt, or amend or supplement any instrument
pursuant to which any such Senior Debt is issued or by which it
may be secured, or release any security therefor, or exercise or
refrain from exercising any other of their rights under the
Senior Debt including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders of
the Debt Securities or the Trustee and without affecting the
obligations of the Company, the Trustee or the Holders of the
Debt Securities under this Article.
ARTICLE NINETEEN
Conversion of Convertible Securities
SECTION 1901. Applicability of Article.
If an Officers' Certificate or supplemental indenture
pursuant to Section 301 provides that the Debt Securities of a
series shall be Convertible Securities, Debt Securities of such
series shall be convertible in accordance with their terms and
(except as otherwise specified in such Officers' Certificate or
supplemental indenture) in accordance with this Article.
SECTION 1902. Right to Convert.
Subject to and upon compliance with the provisions of
this Article, the Holder of any Convertible Security shall have
the right, at such Holder's option, at any time prior to the
close of business on the date set forth in the Officers'
Certificate delivered pursuant to Section 301 hereof (or if such
Convertible Security is called for redemption or submitted for
repayment, then in respect of such Convertible Security to and
including but not after the close of business on the Redemption
or Repayment Date, as the case may be, unless the Company shall
default in the payment due) to convert the principal amount of
any such Convertible Security, or, in the case of any Convertible
Security of a denomination greater than $1,000, any portion of
such principal which is $1,000 or an integral multiple thereof,
into that number of fully paid and nonassessable shares of Common
Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Convertible
Security or portion thereof surrendered for conversion by the
Conversion Price, by surrender of the Convertible Security so to
be converted in whole or in part in the manner provided in
Section 1903. Such conversion shall be effected by the Company.
SECTION 1903. Exercise of Conversion Privilege;
Delivery of Common Stock on Conversion; No Adjustment for
Interest or Dividends.
In order to exercise the conversion privilege, the
Holder of any Convertible Security to be converted in whole or in
part shall surrender such Convertible Security at an office or
agency maintained by the Company pursuant to Section 1002,
accompanied by the funds, if any, required by the last paragraph
of this Section, together with written notice of conversion in
the form provided on the Convertible Securities, that the Holder
elects to convert such Convertible Security or the portion
thereof specified in said notice. Such notice shall also state
the name or names (with address) in which the certificate or
certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be
accompanied by transfer taxes, if required pursuant to
Section 1908. Each Convertible Security surrendered for
conversion shall, unless the shares deliverable on conversion are
to be registered in the same name as the registration of such
Convertible Security, be duly endorsed by, or accompanied by
instruments of transfer in form satisfactory to the Company duly
executed by, the Holder or such Holder's duly authorized
attorney.
As promptly as practicable after the surrender of such
Convertible Security and the receipt of such notice and funds, if
any, as aforesaid, the Company shall deliver at such office or
agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares
deliverable upon the conversion of such Convertible Security or
portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any factional interest in
respect of a share of Common Stock arising upon such conversion
as provided in Section 1904. In case any Convertible Security of
a denomination greater than $1,000 shall be surrendered for
partial conversion and subject to Section 302, the Company shall
execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the Convertible Security so
surrendered, without charge to such Holder, a new Convertible
Security or Convertible Securities in authorized denominations in
an aggregate principal amount equal to the unconverted portion of
the surrendered Convertible Security.
Each conversion shall be deemed to have been effected
on the date on which such Convertible Security shall have been
surrendered (accompanied by the funds, if any, required by the
last paragraph of this Section) and such notice shall
have been received by the Company, as aforesaid, and the person
in whose name any certificate or certificates for shares of
Common Stock shall be registrable upon such conversion shall be
deemed to have become on said date the holder of record of the
shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the
Company shall be closed shall constitute the person in whose name
the certificates are to be registered as the record holder
thereof for all purposes on the next succeeding day on which
stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date upon which such
Convertible Security shall have been surrendered.
Any Convertible Security or portion thereof surrendered
for conversion during the period from the close of business on
the Regular Record Date for any Interest Payment Date shall
(unless such Convertible Security or portion thereof being
converted shall have been called for redemption or submitted for
repayment on a date in such period) be accompanied by payment, in
legal tender or other funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist
at the time of conversion a default on the payment of interest on
the Convertible Securities. An amount equal to such payment
shall be paid by the Company on such Interest Payment Date to the
Holder of such Convertible Security on such Regular Record Date,
provided, however, that if the Company shall default in the
payment of interest on such Interest Payment Date, such amount
shall be paid to the person who made such required payment.
Except as provided above in this Section, no adjustment shall be
made for interest accrued on any Convertible Security converted
or for dividends on any shares issued upon the conversion of such
Convertible Security as provided in this Article.
SECTION 1904. Cash Payments in Lieu of Fractional
Shares.
No fractional shares of Common Stock or scrip
representing fractional shares shall be delivered upon conversion
of Convertible Securities. If more than one Convertible Security
shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate
principal amount of the Convertible Securities (or specified
portions thereof to the extent permitted hereby) so surrendered.
If any fractional share of stock would be deliverable upon the
conversion of any Convertible Security or Convertible Securities,
the Company shall make an adjustment therefor in cash at the
current market value of such fractional share of stock. The
market value of a share of Common Stock shall be the Closing
Price on the Business day immediately preceding the day on which
the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1905. Conversion Price.
The Conversion Price shall be as specified in the form
of Convertible Security hereinafter set forth, subject to
adjustment as provided in this Article.
SECTION 1906. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to
time as follows:
(a) In case the Company shall (i) pay a dividend or
make a distribution on the Common Stock in shares of its capital
stock (whether shares of Common Stock or of capital stock of any
other class), (ii) subdivide or reclassify its outstanding Common
Stock into a greater number of securities (including Common
Stock), or (iii) combine or reclassify its outstanding Common
Stock into a smaller number of securities (including Common
Stock), the Conversion Price in effect immediately prior thereto
shall be adjusted so that the Holder of any Convertible Security
thereafter surrendered for conversion shall be entitled to
receive the number of shares of capital stock of the Company
which such Holder would have owned or have been entitled to
receive after the happening of any of the events described above
had such Convertible Security been converted immediately prior to
the happening of such event. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the
record date in the case of a dividend and shall become effective
immediately after the effective date in the case of a subdivision
or combination. If, as a result of an adjustment made pursuant
to this subsection (a), the Holder of any Convertible Security
thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of capital stock of the
Company, the Board of Directors of the Company (whose
determination shall be conclusive and shall be described in a
written statement filed with the Trustee and any conversion
agent) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital stock.
In the event that at any time, as a result of an
adjustment made pursuant to this subsection (a) of this Section
1906, the Holder of any Convertible Security thereafter converted
shall become entitled to receive any shares or other securities
of the Company other than shares of Common Stock, thereafter the
number of such other shares so received upon conversion of any
Convertible Security shall be subject to adjustment from time to
time in any manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of
Common Stock contained in this Section 1906, and other provisions
of this Article Nineteen with respect to the shares of Common
Stock shall apply on like terms to any such other
shares or other securities.
(b) In case the Company shall fix a record date for
the issuance of rights or warrants to all holders of its Common
Stock (or securities convertible into Common Stock) entitling
them (for a period expiring within 45 days after such record
date) to subscribe for or purchase Common Stock at a price per
share (or a conversion price per share)less than the current
market price per share of Common Stock (as defined in subsection
(d) below) at such record date, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the number of shares of
Common Stock outstanding on such record date plus the number of
shares which the aggregate offering price of the total number of
shares so offered (or the aggregate initial conversion price of
the convertible securities so offered) would purchase at such
current market price, and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date
plus the number of additional shares of Common Stock offered for
subscription or purchase (or into which the convertible
securities so offered are initially convertible). Such
adjustment shall be made successively whenever such a record is
fixed, and shall become effective immediately after such record
date. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at
less than such current market price, and in determining the
aggregate offering price of such shares, there shall be taken
into account any consideration determined by the Board of
Directors of the Company. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not
be deemed outstanding for the purpose of any adjustment required
under this subsection (b).
(c) In case the Company shall fix a record date for
making a distribution to all holders of its Common Stock
evidences of its indebtedness or assets (excluding regular
quarterly or other periodic or recurrent cash dividends or
distributions paid from retained earnings of the Company or
dividends or distributions referred to in subsection (a) above)
or rights or warrants to subscribe or purchase (excluding those
referred to in subsection (b) above), then in each case the
Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction of
which the numerator shall be the current market price per share
(as defined in subsection (d) below) of the Common Stock on such
record date less the then fair market value (as determined by the
Board of Directors of the Company whose determination shall be
conclusive, and described in a certificate filed with the
Trustee) of the portion of the assets or evidences of
indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the
denominator shall be the current market price per share (as
defined in subsection (d) below) of the Common Stock. Such
adjustment shall be made successively when ever such a record
date is fixed and shall become effective immediately after such
record date. Notwithstanding the foregoing, in the event that
the Company shall distribute any rights or warrants to acquire
capital stock ("Rights") pursuant to this subsection (c), the
distribution of separate certificates representing such Rights
subsequent to their initial distribution (whether or not such
distribution shall have occurred prior to the date of the
issuance of such Convertible Securities) shall be deemed to be
the distribution of such Rights for purposes of this
subsection (c); provided that the Company may, in lieu of making
any adjustment pursuant to this subsection (c) upon a
distribution of separate certificates representing such Rights,
make proper provision so that each Holder of such Convertible
Security who converts such Convertible Security (or any portion
thereof) (i) before the record date for such distribution of
separate certificates shall be entitled to receive upon such
conversion shares of Common Stock issued with Rights and
(ii) after such record date and prior to the expiration,
redemption or termination of such Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion, the same number of such
Rights as would a holder of the number of shares of Common Stock
that such Convertible Security so converted would have entitled
the holder thereof to purchase in accordance with the terms and
provisions of and applicable to the Rights if such Convertible
Security were converted immediately prior to the record date for
such distribution. Common Stock owned by or held for the account
of the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required
under this subsection (c).
(d) For the purpose of any computation under
subsection (b) and (c) above, the current market price per share
of Common Stock at any date shall be deemed to be the average of
the daily Closing Prices for the thirty days (which are not legal
holidays as defined in Section 113) commencing forty-five days
(which are not legal holidays as defined in Section 113) before
the day in question. The Closing Price for any day shall be
(i) if the Common Stock is listed or admitted for trading on any
national securities exchange or the National Market System of the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ"), the last sale price (regular way),
or the average of the closing bid and ask prices if no sale
occurred, of Common Stock on the principal securities exchange on
which the Common Stock is listed, (ii) if not listed as described
in (i), the mean between the closing high bid and low asked
quotations of Common Stock on NASDAQ, or any similar system or
automated dissemination of quotations of securities prices then
in common use, if so quoted, or (iii) if not quoted as described
in clause (ii), the mean between the high bid and low asked
quotations for Common Stock as reported by the
National Quotation Bureau Incorporated if at least two securities
dealers have inserted both bid and asked quotations for Common
Stock on at least 5 of the 10 preceding days. If none of the
conditions set forth above is met, the Closing Price of Common
Stock on any day or the average of such Closing Prices for any
period shall be the fair market value of Common Stock as
determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company.
(e) (i) No adjustment in the Conversion price shall
be required unless such adjustment would require an increase
or decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this
subsection (e)(i) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment; further provided, however, that any adjustments
which by reason of this subsection (e)(i) are not otherwise
required to be made shall be made no later than 3 years
after the date on which occurs an event that requires an
adjustment to be made or carried forward.
(ii) All calculations under this Article Nineteen
shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be. Anything in this
Section 1906 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion
Price, in addition to those required by this Section 1906,
as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable
for stock hereafter made by the Company to its shareholders
shall not be taxable.
(f) Whenever the Conversion Price is adjusted, as
herein provided, the Company shall promptly file with the Trustee
and any conversion agent other than the Trustee an Officers'
Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts
requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such
adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the date on which such adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Price to the Holder of each Convertible Security at
such Holder's last address appearing on the Security Register
provided for in Section 305 of this Indenture.
(g) In any case in which this Section 1906 provides
that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the
occurrence of such event (i) delivering to the Holder of any
Convertible Security converted after such record date and before
the occurrence of such event the additional shares of
Common Stock deliverable upon such conversion by reason of the
adjustment required by such event over and above the Common Stock
deliverable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder any amount in cash in
lieu of any fraction pursuant to Section 1904, provided, however,
that the Company shall deliver to such Holder a due xxxx or other
appropriate instrument evidencing such Holder's rights to receive
such additional shares, and such cash, upon the occurrence of the
event requiring such adjustment. If such event does not occur,
no adjustments shall be made pursuant to this Section 1906.
SECTION 1907. Effect of Reclassification,
Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any
reclassification or change of outstanding shares of Common Stock
deliverable upon conversion of the Convertible Securities (other
than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision
or combination, but including any change in the shares of Common
Stock into two or more classes or series of securities), (ii) any
consolidation or merger to which the Company is a party (other
than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any
reclassification of, or change (other than a change in par value,
or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in,
outstanding shares of its Common Stock) or (iii) any sale or
conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the
Company or such successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture
(which shall conform to the Trust Indenture Act as in force at
the date of execution of such supplemental indenture and comply
with the provisions of Article Nine) providing that each
Convertible Security shall be convertible into the kind and
amount of shares of stock and other securities or property,
including cash, receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of a number
of shares of Common Stock deliverable upon conversion of such
Convertible Securities immediately prior to such
reclassification, change, consolidation, merger, sale or
conveyance. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The
Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder of Convertible Securities,
at his address appearing on the Security Register provided for in
Section 305 of this Indenture.
The above provisions of this Section shall similarly
apply to successive reclassifications, consolidations, mergers
and sales.
SECTION 1908. Taxes on Shares Issued.
The delivery of stock certificates on conversions of
Convertible Securities shall be made without charge to the
Holder converting a Convertible Security for any tax in respect
of the issue thereof. The Company shall not, however, be
required to pay any tax which may be payable in respect of any
transfer involved in the delivery of stock registered in any name
other than of the Holder of any Convertible Security converted,
and the Company shall not be required to deliver any such stock
certificate unless and until the person or persons requesting the
delivery thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 1909. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock
which may be delivered upon conversion of Convertible Securities
will upon delivery be fully paid and nonassessable by the Company
and free from all taxes, liens and charges with respect to the
issue thereof.
The Company covenants that if any shares of Common
Stock to be provided for the purpose of conversion of Convertible
Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such
shares may be validly delivered upon conversion, the Company
will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be.
The Company further covenants that it will, if
permitted by the rules of the National Association of Securities
Dealers, Inc., qualify for trading on NASDAQ, upon official
notice of issuance, all Common Stock deliverable upon conversion
of the Convertible Securities.
SECTION 1910. Responsibility of Trustee.
Neither the Trustee nor any authenticating agent nor
any conversion agent shall at any time be under any duty or
responsibility to any Holder of Convertible Securities to
determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature
or extent of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee
nor any authenticating agent nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or
property, which may at any time be delivered upon the conversion
of any Convertible Security; and neither the Trustee nor any
authenticating agent nor any conversion agent makes any
representation with respect thereto. Subject to the
provisions of Section 601, neither the Trustee nor any
authenticating agent nor any conversion agent shall be
responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Convertible Security
for the purpose of conversion or for any failure of the Company
to comply with any of the covenants contained in this Article.
SECTION 1911. Notice to Holders Prior to Certain
Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of its
current or retained earnings); or
(b) the Company shall authorize the granting to the
holders of the Common Stock of rights or warrants to subscribe
for or purchase any share of any class or any other rights or
warrants; or
(c) of any reclassification or change of the Common
Stock (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value) or, of any
consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Corporation is required
or for the sale or transfer of all or substantially all of the
assets of the Company; or
\AP of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; the Company shall cause
to be filed with the Trustee and the Company shall cause to be
mailed to each holder of Convertible Securities at his address
appearing on the Security Register, provided for in Section 305
of this Indenture, as promptly as possible but in any event no
less than fifteen days prior to the applicable date hereinafter
specified, a notice stating (x) the date on which a record is to
be taken for the purpose of such dividend, distribution or rights
or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to
such dividend, distribution or rights are to be determined, or
(y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled
to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Failure
to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up or any
adjustment in the Conversion Price required by this Article
Nineteen.
SECTION 1912. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve
and keep available, free from pre-emptive rights, out of its
authorized but unissued Common Stock, such number of shares of
Common Stock as shall then be deliverable upon the conversion of
all outstanding Convertible Securities.
* * * * *
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.
SOVEREIGN BANCORP, INC.
By ________________________________
[CORPORATE SEAL]
Attest:
___________________________
Secretary
XXXXXX TRUST AND SAVINGS BANK
By ________________________________
[CORPORATE SEAL]
Attest:
____________________________
Assistant Secretary
COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF BERKS :
On this _____ day of __________________, 1999, before
me, a notary public, the undersigned officer, personally appeared
___________________________, who acknowledged himself to be
__________________ of SOVEREIGN BANCORP, INC., a Pennsylvania
corporation, and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
___________________________________
Notary Public
STATE OF ILLINOIS :
:ss.
COUNTY OF __________________ :
On this _____ day of __________________, 1999, before
me, a notary public, the undersigned officer, personally appeared
___________________________, who acknowledged himself to be
__________________ of XXXXXX TRUST AND SAVINGS BANK, an Illinois
corporation, and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
___________________________________
Notary Public
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a Non-United
States Person or by Certain Other Persons]
Certificate
SOVEREIGN BANCORP, INC.
[Insert title or sufficient description of Debt Securities to be
Delivered]
Reference is hereby made to the Indenture dated as of
__________________, 1999 (the "Indenture") between Sovereign
Bancorp, Inc. and Xxxxxx Trust and Savings Bank, as trustee (the
"Trustee") covering the above-captioned Debt Securities. This is
to certify that as of the date hereof, ________________ principal
amount of Debt Securities credited to you for our account (i) is
owned by persons that are not United States Persons, as defined
below; (ii) is owned by United States Persons that are
(a) foreign branches of United States financial institutions (as
defined in the U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) ("financial institutions") purchasing for their own
accounts or for resale, or (b) United States Persons who acquired
the Notes through foreign branches of United States financial
institutions and who hold the Notes through such United States
financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution encloses
herewith a certificate in the form of Exhibit A-2 to the
Indenture); or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), which United States or foreign
financial institutions described in clause (iii) above (whether
or not also described in clause (i) or (ii)) certify that they
have not acquired the Notes for purposes of resale directly or
indirectly to a United States Person or to a person within the
United States or its possessions.
[Insert if certificate does not relate to an interest
payment--We undertake to advise you by tested telex followed by
written confirmation if the above statement as to beneficial
ownership is not correct on the date of delivery of the above-
captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then
appear in your books as being held for our account.] We
understand that this certificate is required in connection with
United States tax laws. We irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters
covered by this certificate. "United States Persons" shall mean
a citizen or resident of the United States of America (including
the District of Columbia), a corporation, partnership or other
entity created or organized in or under the laws of
the United States or any political subdivision thereof or an
estate or trust that is subject to United States federal income
taxation regardless of the source of its income.
[This certificate excepts and does not relate to
___________ principal amount of Debt Securities credited to you
for our account and to which we are not now able to make the
certification set forth above. We understand that definitive
Debt Securities cannot be delivered and interest cannot be paid
until we are able to so certify with respect to such principal
amount of Debt Securities.]*
Dated:_________________________
[To be dated on or after
___________________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
______________________________
(Authorized Signatory)
Name:_________________________
Title:________________________
__________________
* Delete if appropriate
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
SOVEREIGN BANCORP, INC.
[Insert title or sufficient description of Debt Securities to be
delivered]
Reference is hereby made to the Indenture dated as of
__________________, 1999, (the "Indenture"), between Sovereign
Bancorp, Inc. and Xxxxxx Trust and Savings Bank, as trustee,
relating to the offering of the above-captioned Debt Securities
(the "Debt Securities"). Unless herein defined, terms used
herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located
outside the United States of a United States securities clearing
organization, bank or other financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) that holds
customers' securities in the ordinary course of its trade or
business and agrees, and authorizes you to advise the issuer or
the issuer's agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986 and the regulations thereunder and is not purchasing for
resale directly or indirectly to a United States Person or to a
person within the United States or its possession. We undertake
to advise you by tested telex followed by written confirmation if
the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt
Securities in bearer form.
We understand that this certificate is required in
connection with the United States tax laws. We irrevocably
authorize you to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings with
respect to the matters covered by this certificate.
Dated:________________________
[To be dated on or after
______________________ (the
date determined as provided
in the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
______________________________
(Authorized Signatory)
Name:_________________________
Title:________________________
EXHIBIT B
[Form of Certificate to be Given by Euroclear
and Cedel S.A. in Connection with the Exchange of
All or a Portion of a Temporary Global Security
or to Obtain Interest Prior to Exchange]
Certificate
SOVEREIGN BANCORP, INC.
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, _______________, of the
Global Security representing the above-captioned issue [which is
herewith submitted to be exchanged for definitive Debt
Securities]* [for which we are seeking to obtain payment of
interest]* (the "Submitted Portion"). This is to certify,
pursuant to the Indenture dated as of __________________, 1999
(the "Indenture") between Sovereign Bancorp, Inc. and Xxxxxx
Trust and Savings Bank, as trustee (the "Trustee"), that we have
received in writing, by tested telex or by electronic
transmission from member organizations with respect to each of
the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion a Certificate of
Beneficial Ownership by a Non-United States Person or by Certain
Other Persons, [and, in some cases, a Certificate of Status as a
Foreign Branch of a United States Financial Institution,
authorizing us to inform the issuer or the issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986 and the regulations
thereunder]* substantially in the form of Exhibit A-1 [and A-2]*
to the Indenture.
We hereby request that you deliver to the office of
___________________ in ________________ definitive Bearer
Securities in the denominations on the attached Schedule A.
We further certify that as of the date hereof we have
not received any notification from any of the persons giving such
certificates to the effect that the statements made by them with
respect to any part of the Submitted Portion are no longer true
and cannot be relied on as of the date hereof.
Date:_________________________
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[Cedel S.A.]
By_________________________________
_______________
*Delete if inappropriate
