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Exhibit 4.2
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NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
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SUBORDINATED INDENTURE
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Dated as of April 30, 1999
Subordinated Debt Securities
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Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Subordinated Indenture, dated as of April 30, 1999
Trust Indenture Act Section Indenture Section
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#310 (a)(1).................................................... 607
(a)(2).................................................... 607
(a)(3).................................................... 108
(a)(4).................................................... Not Applicable
(b)....................................................... 108
#311 (a)....................................................... 108
(b)....................................................... 108
(b)(2).................................................... 108
#312 (a)....................................................... 701, 702(a)
(b)....................................................... 702(a)
(c)....................................................... 702(b)
#313 (a)....................................................... 703(a)
(b)(1).................................................... Not Applicable
(b)(2).................................................... 108
(c)....................................................... 703(c)
(d)....................................................... 703(c)
#314 (a)....................................................... 704
(b)....................................................... Not Applicable
(c)(1).................................................... 102
(c)(2).................................................... 102
(c)(3).................................................... Not Applicable
(d)....................................................... Not Applicable
(e)....................................................... 102
#315 (a)....................................................... 108
(b)....................................................... 601
(c)....................................................... 108
(d)....................................................... 108
(d)(1).................................................... 108
(d)(2).................................................... 108
(d)(3).................................................... 108
(e)....................................................... 108
#316 (a)....................................................... 104
(a)(1)(A)................................................. 502, 512
(a)(1)(B)................................................. 513
(a)(2).................................................... Not Applicable
(b)....................................................... 508
#317 (a)(1).................................................... 503
(a)(2).................................................... 504
(b)....................................................... 1003
#318 (a)....................................................... 108
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Subordinated Indenture.
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TABLE OF CONTENTS
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Parties ................................................................................. 1
Recitals ................................................................................. 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION ................................................................. 1
Section 101. Definitions ........................................................... 1
Act ............................................................................. 2
Additional Amounts .............................................................. 2
Affiliate ....................................................................... 2
Authenticating Agent ............................................................ 2
Authorized Newspaper ............................................................ 2
Bank ............................................................................ 2
Bearer Security ................................................................. 3
Board of Directors .............................................................. 3
Board Resolution ................................................................ 3
Business Day .................................................................... 3
Capital Stock ................................................................... 3
Commission ...................................................................... 3
Common Stock .................................................................... 3
Company ......................................................................... 3
Company Request ................................................................. 3
Company Order ................................................................... 3
Constituent Bank ................................................................ 3
Corporate Trust Office .......................................................... 3
Corporation ..................................................................... 4
Coupon .......................................................................... 4
Defaulted Interest .............................................................. 4
Dollars or "$" .................................................................. 4
Event of Default ................................................................ 4
Government Obligations .......................................................... 4
Holder .......................................................................... 4
Indenture ....................................................................... 5
Independent Public Accountants .................................................. 5
Interest ........................................................................ 5
Interest Payment Date ........................................................... 5
Legal Holiday ................................................................... 5
Maturity ........................................................................ 5
Officers' Certificate ........................................................... 5
Opinion of Counsel .............................................................. 6
Original Issue Discount Security ................................................ 6
Outstanding ..................................................................... 6
Paying Agent .................................................................... 7
Person .......................................................................... 7
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Place of Payment ................................................................ 7
Predecessor Security ............................................................ 7
Principal Constituent Bank ...................................................... 7
Redemption Date ................................................................. 7
Redemption Price ................................................................ 7
Registered Security ............................................................. 8
Regular Record Date ............................................................. 8
Responsible Officer ............................................................. 8
Security or Securities .......................................................... 8
Security Register and Security Registrar ........................................ 8
Senior Indebtedness ............................................................. 8
Special Record Date ............................................................. 9
Stated Maturity ................................................................. 9
Subsidiary ...................................................................... 9
Trust Indenture Act ............................................................. 9
Trustee ......................................................................... 0
Xxxxxx Xxxxxx ................................................................... 0
Xxxxxx Xxxxxx Alien ............................................................. 9
U.S. Depository or Depository ................................................... 9
Vice President ..................................................................10
Voting Stock ....................................................................10
Section 102 Compliance Certificates and Opinions ..................................10
Section 103. Form of Documents Delivered to Trustee ................................10
Section 104. Acts of Holders ......................................................11
Section 105. Notices, Etc., to Trustee and Company ................................13
Section 106. Notice to Holders; Waiver .............................................14
Section 107. Language of Notices ..................................................15
Section 108. Conflict with Trust Indenture Act ....................................15
Section 109. Effect of Headings and Table of Contents .............................15
Section 110. Successors and Assigns ...............................................15
Section 111. Separability Clause ..................................................15
Section 112. Benefits of Indenture ................................................15
Section 113. Governing Law ........................................................15
Section 114. Legal Holidays ........................................................15
ARTICLE TWO SECURITIES FORMS ...........................................................16
Section 201. Forms Generally ......................................................16
Section 202. Form of Trustee's Certificate of Authentication .....................16
Section 203. Securities in Global Form .............................................16
ARTICLE THREE THE SECURITIES ...........................................................17
Section 301. Amount Unlimited; Issuable in Series .................................17
Section 302. Denominations ........................................................21
Section 303. Execution, Authentication, Delivery and Dating .......................21
Section 304. Temporary Securities .................................................23
Section 305. Registration, Transfer and Exchange ..................................24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities .....................27
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Section 307. Payment of Interest; Interest Rights Preserved ...................28
Section 308. Persons Deemed Owners .............................................30
Section 309. Cancellation ....................................................30
Section 310. Computation of Interest ..........................................31
Section 311. CUSIP Numbers ....................................................31
ARTICLE FOUR SATISFACTION AND DISCHARGE ...........................................31
Section 401. Satisfaction and Discharge of Indenture ..........................31
Section 402. Application of Trust Money .......................................33
ARTICLE FIVE REMEDIES 33
Section 501. Events of Default ................................................33
Section 502. Acceleration of Maturity; Rescission and Annulment ...............34
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ...........................................35
Section 504. Trustee May File Proofs of Claim ................................36
Section 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons ..............................37
Section 506. Application of Money Collected ...................................37
Section 507. Limitation on Suits ...............................................37
Section 508. Unconditional Right of Holders to Receive
Principal, Premium, Interest and Additional
Amounts ..........................................................38
Section 509. Restoration of Rights and Remedies ................................38
Section 510. Rights and Remedies Cumulative ..................................38
Section 511. Delay or Omission Not Waiver ....................................39
Section 512. Control by Holders ...............................................39
Section 513. Waiver of Past Defaults .........................................39
Section 514. Waiver of Stay or Extension Laws .................................40
ARTICIX THE TRUSTEE ................................................................40
Section 601. Notice of Defaults ................................................40
Section 602. Certain Rights of Trustee ........................................40
Section 603. Not Responsible for Recitals or Issuance of Securities ...........42
Section 604. May Hold Securities ..............................................42
Section 605. Money Held in Trust ..............................................42
Section 606. Compensation And Reimbursement ....................................42
Section 607. Corporate Trustee Required; Eligibility;
Conflicting Interests ............................................43
Section 608. Resignation and Removal; Appointment of Successor ................43
Section 609. Acceptance of Appointment by Successor ............................45
Section 610. Merger, Conversion, Consolidation or
Succession to Business ............................................46
Section 611. Appointment of Authenticating Agent ..............................47
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY ............................................49
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Section 701. Company to Furnish Trustee Names and
Addresses of Holders ..............................................49
Section 702. Preservation of Information; Communications to Holders ..........50
Section 703. Reports by Trustee ...............................................50
Section 704. Reports by Company ...............................................50
ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES ........................................51
Section 801. Company May Consolidate, Etc., Only on Certain Terms ..............51
Section 802. Successor Corporation Substituted for Company ....................52
ARTICLE NINE SUPPLEMENTAL INDENTURES ...............................................53
Section 901. Supplemental Indentures Without Consent Of Holders ...............53
Section 902. Supplemental Indentures with Consent of Holders ..................54
Section 903. Execution of Supplemental Indentures .............................56
Section 904. Effect of Supplemental Indentures ................................56
Section 905. Conformity with Trust Indenture Act ..............................56
Section 906. Reference in Securities to Supplemental Indentures ..............56
Section 907. Subordination Unimpaired .........................................56
ARTICLE TEN COVENANTS ...............................................................57
Section 1001. Payment of Principal, Premium, if any, and Interest ..............57
Section 1002. Maintenance of Office or Agency .................................57
Section 1003. Money For Securities Payments to Be Held In Trust ................58
Section 1004. Additional Amounts ...............................................60
Section 1005. Statement as to Compliance; Notice of Certain Defaults ...........60
Section 1006. Payment of Taxes And Other Claims ................................61
Section 1007. Corporate Existence ..............................................61
Section 1008. Waiver of Certain Covenants ......................................62
Section 1009. Calculation of Original Issue Discount ...........................62
ARTICLE ELEVEN REDEMPTION OF SECURITIES ..........................................62
Section 1101. Applicability of Article .........................................62
Section 1102. Election to Redeem; Notice to Trustee ...........................62
Section 1103. Selection by Trustee of Securities to Be Redeemed ................62
Section 1104. Notice of Redemption ............................................63
Section 1105. Deposit of Redemption Price ......................................64
Section 1106. Securities Payable on Redemption Date ............................64
Section 1107. Securities Redeemed in Part ......................................65
ARTICLE TWELVE SINKING FUNDS ......................................................65
Section 1201. Applicability of Article .........................................65
Section 1202. Satisfaction of Sinking Fund Payments With Securities ............66
Section 1203. Redemption of Securities for Sinking Fund .........................66
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS .................................67
Section 1301. Applicability of Article .........................................67
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ARTICLE FOURTEEN MEETINGS OF HOLDERS ...............................................67
Section 1401. Purposes For Which Meetings May Be Called .......................67
Section 1402. Call, Notice And Place of Meetings ................................67
Section 1403. Persons Entitled to Vote at Meetings .............................68
Section 1404. Quorum; Action ..................................................68
Section 1405. Determination of Voting Rights; Conduct
And Adjournment of Meetings ......................................69
Section 1406. Counting Votes and Recording Action of Meetings ..................70
ARTICLE FIFTEEN SUBORDINATION ......................................................70
Section 1501. Securities Subordinated to Senior Indebtedness ....................70
Section 1502. Subrogation ......................................................73
Section 1503. Obligation of Company Unconditional ..............................73
Section 1504. Payments on Securities Permitted ................................74
Section 1505. Effectuation of Subordination by Trustee .........................74
Section 1506. Knowledge of Trustee .............................................74
Section 1507. Trustee's Relation to Senior Indebtedness .......................74
Section 1508. Rights of Holders of Senior Indebtedness Not Impaired ............75
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SUBORDINATED INDENTURE, dated as of April 30, 1999 (the "Indenture"),
among NATIONAL CITY CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (the "Company"), having its principal office
at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, and THE BANK OF NEW YORK, a
New York banking corporation, having its principal office at 000 Xxxxxxx Xxxxxx,
Xxxxx 21 West, New York, New York 10286, as Trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof or Coupons appertaining to any Securities, 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, either directly or by reference therein, 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
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principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof", "hereto" 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 which are used principally in certain Articles hereof are
defined in those Articles.
"Act", when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"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.
The terms "controlling" and "controlled" have the meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"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 Legal Holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each 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:
(i) any institution organized under the laws of the United States,
any State of the United States, the District of Columbia, any
territory of the United States, Puerto Rico, Guam, American
Samoa or the Virgin Islands which
(a) accepts deposits that the depositor has a legal right
to withdraw on demand, and
(b) engages in the business of making commercial loans,
or
(ii) any trust company organized under any of the foregoing laws.
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"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or
any committee of that board duly authorized to act for the Company hereunder.
"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, or any duly authorized committee thereof, and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", except as may otherwise be provided herein or in any
Security, means any day, other than a Saturday or a Sunday, that is neither a
Legal Holiday nor a day on which banking institutions are authorized or required
by law, regulation or executive order to close in The City of New York.
"Capital Stock" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter authorized,
irrespective of whether such class shall be limited to a fixed sum or percentage
in respect of the rights of the holders thereof to participate in dividends and
in the distribution of assets upon the voluntary liquidation, dissolution or
winding up of such corporation.
"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 Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means all shares now or hereafter authorized of the
class of common stock of the Company presently authorized and stock of any other
class into which such shares may hereafter have been changed.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean a written request or
order, as the case may be, signed in the name of the Company by the Chairman of
the Board of Directors, a Deputy Chairman, a Vice Chairman, the President 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.
"Constituent Bank" means any Subsidiary which is a Bank.
"Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is its
Corporate and Municipal Trust Services office located at 000 Xxxxxxx Xxxxxx,
Xxxxx 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
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"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit in the
currency of the United States, except as may otherwise be provided herein or in
any Security.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", with respect to any Securities unless
otherwise specified herein or therein, means:
(i) direct obligations of the United States of America or the
government or governments which issued the currency, currency
unit or composite currency in which any Securities are
payable, for the payment of which its full faith and credit is
pledged or
(ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of
America or such government or governments which issued the
currency, currency unit or composite currency in which such
Securities are payable, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other
government or governments,
which, in either case, are not callable or redeemable at the option of the
issuer or issuers thereof, and
(iii) a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except
as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific
payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and with respect to any Security shall include the terms of such Securities
established as contemplated by Section 301; provided, however, that, if at any
time more than one Person is acting as Trustee under this instrument,
"Indenture" shall
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mean, with respect to any one or more series of Securities for which such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Independent Public Accountants" means accountants or a firm of
accountants that are independent public accountants with respect to the Company
within the meaning of the Securities Act of 1933 and the rules and regulations
promulgated by the Commission thereunder who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to the
Indenture or certificates required to be provided hereunder.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, with respect to any Security which provides for the payment of
Additional Amounts pursuant to Section 1004, includes such Additional Amounts.
"Interest Payment Date", with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Legal Holiday", except as otherwise may be provided herein or in any
Securities, with respect to any Place of Payment or other location, means a
Saturday, a Sunday or a day on which banking institutions or trust companies in
such Place of Payment or other location are not authorized or obligated to be
open.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Deputy Chairman, a Vice Chairman, the President 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", except as otherwise provided herein or in any
Security, means a written opinion of counsel, who may be an employee of or
counsel for the Company or other counsel who shall be reasonably acceptable to
the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable upon acceleration pursuant to Section
502.
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"Outstanding", with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore canceled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(ii) Securities, or portions thereof for whose payment or
redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any Coupons appertaining thereto, provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes and for purposes of
making the calculations required by Section 313 of the Trust Indenture Act,
(a) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue
Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of
acceleration pursuant to Section 502 at the time of such
determination or calculation, and
(b) the principal amount of any Security denominated other than in
Dollars that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined by
the Company as of the date such Security is originally issued
by the Company, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as
provided in clause (i) above) of such Security, and
(c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other
obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in making any such calculation or relying
upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which
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the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Security or Coupon on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in or pursuant to Section
301(9) or Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
lost, destroyed, mutilated or stolen Security or any Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.
"Principal Constituent Bank" means any Constituent Bank the
consolidated assets of which as set forth in the most recent statement of
condition of such Bank constitute 15% or more of the Company's consolidated
assets as determined from the most recent quarterly balance sheet of the
Company.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered and the transfer or exchange thereof is
registrable in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in such Security as the "Regular Record Date".
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee in its Corporate Trust Office and also means, with
respect to a particular corporate trust
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matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means:
(i) the principal and any premium or interest for money borrowed
or purchased by the Company;
(ii) the principal and any premium or interest for money borrowed
or purchased by another Person and guaranteed by the Company;
(iii) any deferred obligation for the payment of the purchase price
of property or assets evidenced by a note or similar
agreement;
(iv) an obligation arising from direct credit substitutes; and
(v) any obligation associated with derivative products such as
interest and foreign exchange rate contracts, commodity
contracts and similar arrangements;
in each case, whether outstanding on the date this Subordinated Indenture
becomes effective, or created, assumed or incurred after that date.
Senior Indebtedness excludes any indebtedness that:
(a) expressly states that it is junior to, or ranks equally in
right of payment with, the Securities; or
(b) is identified as junior to, or equal in right of payment with,
the Securities in any Board Resolution or in any supplemental
indenture.
"Special Record Date" for the payment of any Defaulted Interest on any
registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security
or a Coupon representing such installment of interest as the fixed date on which
the principal of such Security or such installment of principal or interest is
due and payable, as such date may be extended pursuant to Section 308.
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"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"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
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States", except as otherwise provided herein or in any
Security, means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided herein or in any
Security, 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. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository by the Company pursuant to Section 301, which must
be a clearing agency registered under the Securities Exchange Act of 1934 and,
if so provided pursuant to Section 301 with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President", with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "Vice President".
"Voting Stock" means stock of a corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such corporation
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
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, 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
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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 or any of them 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 and in any applicable
Security (except Section 1005) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the
definitions herein and in any applicable Security 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
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such condition or covenant 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 certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
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SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by 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 agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fourteen, 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 Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 315 of
the Trust Indenture Act) conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1406.
Without limiting the generality of this Section 104, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301, a Holder, including a U.S. Depository that is a
Holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a Holder of a global
Security may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such U.S. Depository's standing instructions
and customary practices.
The Trustee shall fix a record date, which shall be not more than 30
days prior to the first solicitation of Holders, for the purpose of determining
the Persons who are beneficial owners of interest in any permanent global
Security held by a U.S. Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other action, whether or not such Holders remain Holders
after such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action shall be valid or effective if made,
given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in
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accordance with such reasonable rules as the Trustee may determine; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
termination of holding the same, shall be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any Bank, banker or
other depositary reasonably acceptable to the Company, wherever situated, if
such certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or
(2) such Bearer Security is produced to the Trustee by some other
Person, or
(3) such Bearer Security is surrendered in exchange for a
Registered Security, or
(4) such Bearer Security is no longer Outstanding.
The principal amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of the commencement and the
date of termination of holding the same may also be proved in any other manner
which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at their option, by Board Resolutions, fix
in advance a record date, which shall be not more than 30 days prior to the
first solicitation of such Holders, for the determination of Holders of
Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the
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Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(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 Treasurer at the address of its principal
office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to a
Responsible Officer of the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Except as otherwise expressly provided herein or in any Security, 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 his address as it appears in the
Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of
such Notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed
on any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise
the Trustee that such stock exchange so requires, 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 any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail,
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then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed pursuant to Section 318(c) of the Trust Indenture Act, such imposed
duties shall control.
SECTION 109. 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 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any Coupon
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.
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SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities or Coupon, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture, the Securities and the Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security, or the last date on which a Holder has the right to
convert his Securities, shall be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or Coupon
other than a provision in any Security or any Coupon that specifically states
that such provision shall apply in lieu of this Section) payment of interest or
any Additional Amounts or principal (and premium, if any) or conversion of the
Securities need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or on such last date for conversion, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary global
Security issued pursuant to this Indenture shall be in the form established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security, as
evidenced by their execution of such Security.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
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SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK
as Trustee
By____________________________
Authorized Signatory
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the immediately preceding sentence shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
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 Securities represented
thereby, together with the written statement contemplated by the immediately
preceding sentence.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (1) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (2) in the case of a permanent
global Security in bearer form, the Person or Persons specified pursuant to
Section 301.
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
Fifteen.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto,
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series
which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 304,
305, 306, 906 or 1107 or the terms of such Securities);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both and, if the
Securities are to be issuable exclusively or alternatively as
Bearer Securities, whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any
restrictions applicable to the offer, sale, delivery or
conversion of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered
Securities and vice versa;
(4) whether any Securities of the series are to be issuable
initially or otherwise in global form and, if so,
(a) whether beneficial owners of interests in any such
global Security may exchange such interest for
Securities of such series and of like tenor of any
authorized form and denomination and the
circumstances under which any such exchanges may
occur, if other than in the manner specified in
Section 305,
(b) the name of the depository or the U.S. Depository, as
the case may be, with respect to any global Security
and
(c) the manner in which interest payable on a global
security will be paid;
(5) the date as of which any Bearer Securities of the series and
any global Security representing Outstanding Securities of the
series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
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(6) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form (representing all of
the Outstanding Bearer Securities of the series) payable in
respect of an Interest Payment Date prior to the exchange of
such temporary Bearer Security for definitive Securities of
the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer 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;
(7) the date or dates, or the method, if any, by which such date
or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method, if any, by which such rate or
rates are to be determined, the date or dates, if any, from
which such interest shall accrue or the method, if any, by
which such date or dates are to be determined, the Interest
Payment Dates, if any, on which such interest shall be payable
and the Regular Record Date, if any, for the interest payable
on Registered Securities on any Interest Payment Date, whether
and under what circumstances Additional Amounts on such
Securities or any of them shall be payable, and the basis upon
which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and interest (including
Additional Amounts), if any, on such Securities shall be
payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the
series may be surrendered for exchange or conversion and
notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(10) whether the Securities of the series or any of them are to be
redeemable at the option of the Company and, if so, the period
or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
Securities of the series or any of them pursuant to any
sinking fund or at the option of any Holder thereof and, if
so, the period or periods within which, the price or prices at
which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the
remarketing of the Securities of the series so redeemed or
purchased;
(12) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the
denominations in which Bearer Securities of the series, if
any, shall be issuable if other than the denomination of
$5,000;
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(13) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series or any of
them which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the method
by which such portion is to be determined;
(14) if other than such currency of the United States of America as
at the time of payment is legal tender for payment of public
or private debts, the currency, composite currencies or
currency unit or units in which payment of the principal of
(and premium, if any) or interest, if any, on or any
Additional Amounts in respect of the Securities of the series
or any of them shall be payable;
(15) if the principal of (and premium, if any) or interest, if any,
on or any Additional Amounts in respect of the Securities of
the series or any of them are to be payable, at the election
of the Company or a Holder thereof, in a currency, composite
currencies or currency unit or units other than that in which
the Securities of the series or any of them are stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(16) whether the amount of payments of principal of (and premium,
if any) or interest (including Additional Amounts), if any, on
the Securities of the series may be determined with reference
to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities,
equity indices or other indices), and, if so, the terms and
conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
(17) whether the principal of (and premium, if any) or interest
(including Additional Amounts), if any, on the Securities of
the series are to be payable, at the election of the Company
or any Holder thereof or otherwise, in a currency or
currencies, currency unit or units or composite currency or
currencies other than that in which such Securities or any of
them are denominated or stated to be payable, the period or
periods within which, and the other terms and conditions upon
which, such election, if any, may be made, and the time and
manner of determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or
currencies in which such Securities or any of them are
denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities or any of them are to be
so payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
the Securities of the series or any of them, whether or not
such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(19) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange
of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, then the form and terms of such
certificates, documents or conditions;
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(20) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security
Registrar, Paying Agent and/or Authenticating Agent with
respect to the Securities of the series; and
(21) whether any of the Securities of a series shall be issued as
Original Issue Discount Securities; and
(22) any other terms of the Securities of the series or any of them
(which terms shall not be inconsistent with the provisions of
this Indenture).
All Securities of any one series and Coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to one or more Board Resolutions and set
forth in such Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series were established by
action taken by or pursuant to a Board Resolution, the Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
SECTION 302. DENOMINATIONS.
Unless otherwise established with respect to any Securities pursuant to
Section 301, the Registered Securities of each series, if any, denominated in
Dollars shall be issuable in registered form without coupons in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of each
series, if any, denominated in Dollars shall be issuable in the denomination of
$5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities pursuant to
Section 301.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any Coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board, a Deputy Chairman, one of
its Vice Chairmen, its President or one of its Vice Presidents under its
corporate seal and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and any
Coupons appertaining thereto may be manual or facsimile.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any Coupons appertaining thereto, executed by the Company, to the Trustee for
authentication, and, provided that the Board
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Resolution or Resolutions and Officers' Certificate or supplemental indenture or
indentures with respect to such Securities referred to in Section 301 and a
Company Order for the authentication and delivery of such Securities, has been
delivered to the Trustee, the Trustee in accordance with the Company Order and
subject to the provisions hereof of such Securities shall authenticate and
deliver such Securities. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities
and any Coupons appertaining thereto, the Trustee shall be entitled to receive,
and (subject to Sections 315(a) through 315(b) of the Trust Indenture Act) shall
be fully protected in relying upon,
(1) an Opinion of Counsel stating, to the effect
(a) that the form or forms and terms of such Securities
and Coupons, if any, have been established in
conformity with the provisions of this Indenture;
(b) that all conditions precedent to the authentication
and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and
that such Securities, and Coupons, when completed by
appropriate insertion and executed and delivered by
the Company to the Trustee for authentication
pursuant to this Indenture, and 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 legally
valid and binding obligations of the Company,
enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
other similar laws affecting the enforcement of
creditors' rights generally, and subject to general
principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law) and will entitle the Holders thereof to the
benefits of the Indenture; such Opinion of Counsel
need express no opinion as to the availability of
equitable remedies;
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such
Securities and Coupons, if any, have been complied
with; and
(d) as to such other matters as the Trustee may
reasonably request; and
(ii) an Officers' Certificate stating that, to the best knowledge
of the Persons executing such certificate, no Event of Default
with respect to any of the Securities shall have occurred and
be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the
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Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken or if the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing Holders.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified as contemplated by Section 301.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form provided
for in Section 202 or 611 executed by or on behalf of the Trustee by the manual
signature of one of its authorized officers, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant Coupons for interest then matured have been
detached and canceled.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee and, upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company shall cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of any Series, the temporary Securities of such series, if
any, shall be exchangeable upon request for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an office or agency of the Company maintained for
such purpose pursuant to Section 1002, without charge to any Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations of
the same series containing identical terms and provisions; provided, however,
that no definitive bearer security, except as provided pursuant to Section 301,
shall be delivered in exchange for a temporary registered security; and
provided, further, that a definitive bearer security shall be delivered in
exchange for a temporary bearer security only in compliance with the conditions
set forth herein or therein. Unless otherwise specified as contemplated by
Section 301 with respect
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to a temporary global Security, until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept, at an office or agency of the Company maintained
pursuant to Section 1002, a register (each such register being 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 the Registered Securities of each series and of transfers of the Registered
Securities of such series. In the event that the Trustee shall not be the
Security Registrar, it shall have the right to examine the Security Register at
all reasonable times. National City Bank, Cleveland, Ohio is hereby initially
appointed as Security Registrar for each series of Securities. In the event that
National City Bank, Cleveland, Ohio shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times.
Upon surrender for registration of transfer of any Registered Security
of any series at any office or agency of the Company maintained for that series
pursuant to Section 1002, 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 denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Registered Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
If specified as contemplated by Section 301 with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series may
be exchanged for Registered Securities of such series containing identical terms
and provisions, of any authorized denominations and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any such office or
agency for such series, 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
is 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 otherwise
provided in Section 1002, interest represented by Coupons shall be
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payable only upon presentation and surrender of those Coupons at an office or
agency for such series 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 such series and like tenor after the close of business at such
office or agency on
(1) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date,
or
(2) 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 (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, 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.
If specified as contemplated by Section 301 with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided pursuant hereto with respect to such series.
Whenever any Securities are so surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security of any series shall be
exchangeable for Securities of such series only if
(1) the Securities Depository is at any time unwilling or unable
or ineligible to continue as Securities Depository and a
successor depository is not appointed by the Company within 60
days of the date the Company is so notified in writing,
(2) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so
exchangeable, or
(3) an Event of Default has occurred and is continuing with
respect to the Securities.
If the beneficial owners of interests in a global Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of any authorized form and denomination, as specified as
contemplated by Section 301, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or
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after the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered from time to time by the U.S. Depository or such
other depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other depository, as the case may be (which instructions
shall be in writing but need not comply with Section 102 or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge.
The Trustee shall authenticate and make available for delivery, in
exchange for each portion of surrendered global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such global Security to be
exchanged which (unless the Securities of such series are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are issuable, as specified as contemplated by Section
301) shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof.
However, no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of such series to be
redeemed and ending on the relevant Redemption Date. Unless otherwise specified
as contemplated by Section 301, no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository or the
U.S. Depository, as the case may be, or such other Depository or U.S. Depository
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the office or agency where such
exchange occurs on
(1) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date,
or
(2) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment
of interest or Defaulted Interest.
Interest will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered Security,
but will be payable on such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest in respect of such
portion of such global Security is payable in accordance with the provisions of
this Indenture.
All Securities endorsed thereon issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the Company
evidencing the same debt, and entitling the Holders thereof to the same benefits
under this Indenture as the Securities surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange, redemption or conversion shall (if so required by the
Company or the Security Registrar for such series of Security presented) be duly
endorsed, or be accompanied by a written
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instrument of transfer in form satisfactory to the Company and such Security
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer,
exchange, redemption or conversion of 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 registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, or 1107 not
involving any transfer.
Except as otherwise specified as contemplated by Section 301, the
Company shall not be required
(1) to issue, register the transfer of or exchange any Securities
of any series during a period beginning at the opening of
business 15 days before the day of the selection for
redemption of Securities of such series under Section 1103 and
ending at the close of business on the day of such selection,
or
(2) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part,
except in the case of any Security to be redeemed in part, the
portion thereof not to be redeemed, or
(3) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Security,
that such a Bearer Security may be exchanged for a Registered
Security of that series, provided that such Registered
Security shall be immediately surrendered for redemption with
written instruction for payment consistent with the provisions
of this Indenture, or
(4) to issue, register the transfer of or exchange any Security
which, in accordance with its terms specified as contemplated
by Section 301, has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such
Security not to be repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee
(1) evidence to their satisfaction of the destruction, loss or
theft of any Security or Coupon, and
(2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
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then, in the absence of notice to the Company or the Trustee that such Security
or Coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen Coupon appertains
with all appurtenant Coupons not destroyed, lost or stolen, a new Security of
the same series containing identical terms and of like principal amount and
bearing a 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.
Notwithstanding the foregoing provisions of this Section 306, in case
any such mutilated, destroyed, lost or stolen Security or Coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or Coupon. However, 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. Unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its Coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security and
its Coupons, if any, or the destroyed, lost or stolen Coupon shall constitute a
separate obligation of the Company, whether or not the destroyed, lost or stolen
Security and its Coupons, if any, or the destroyed, lost or stolen Coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their Coupons, if any.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301, 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 Security (or one or more Predecessor Securities) is registered as of
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
of such Bearer
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Security, but will be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series which shall be
payable, but shall not be punctually paid or duly provided for, on any Interest
Payment Date for such Registered Security (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of 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 affected (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 such Registered
Security and the date of the proposed payment. At the same
time, the Company shall deposit on or with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment. When deposited,
such money will be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in
this Clause (1). 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. In the name and at the expense of the Company
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Registered
Securities at his or her address as it appears in the Security
Register not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered 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.
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(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which such 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 (2), such
payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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 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 Sections 305 and 307)
interest on or any Additional Amounts with respect to such Registered Security,
and for all other purposes whatsoever, whether or not any payment with respect
to such Registered Security be overdue. Neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof, and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon be overdue. Neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee or the
Security Registrar, be delivered to the Trustee or the Security Registrar. Any
such Securities and Coupons and Securities and Coupons surrendered directly to
the Trustee or the Security Registrar for any such purpose shall be promptly
canceled by the Trustee or the Security Registrar, as the case may be. The
Company may at any time deliver to the Trustee or the Security Registrar for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever. All Securities so
delivered shall be promptly canceled by the Trustee or the Security Registrar,
as the case may be. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture or as otherwise specified as contemplated
by Section 301. All canceled Securities and Coupons held by the Trustee or the
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Security Registrar shall be returned to the Company by the Trustee or the
Security Registrar, as the case may be, upon a Company Order. The Trustee shall
promptly notify the Company of all canceled Securities.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein
expressly provided for and any right to receive Additional Amounts, as provided
in Section 1004). The Trustee, on receipt of a Company Order, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all Coupons
appertaining thereto, other than
(i) Coupons appertaining to Bearer Securities of
such series surrendered for exchange for
Registered Securities of such series and
maturing after such exchange, whose
surrender is not required or has been waived
as provided in Xxxxxxx 000,
(xx) Securities and Coupons of such series which
have been destroyed, lost or stolen and
which have been replaced or paid as provided
in Xxxxxxx 000,
00
00
(xxx) Xxxxxxx appertaining to Securities of such
series called for redemption and maturing
after the relevant Redemption Date, whose
surrender has been waived as provided in
Section 1107, and
(iv) Securities and Coupons of such series for
whose payment money has theretofore been
deposited in trust or segregated and held in
trust by the Company and thereafter repaid
to the Company or discharged from such
trust, as provided in Section 1003) have
been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of
(B)(i) or (ii) below, any such Coupons appertaining
thereto 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) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
funds in trust, lawful money of the United States or
Government Obligations which, through the payment of interest
and principal or other amounts in respect thereof in
accordance with their terms, will provide not later than the
opening of business on the due dates of any payment of
principal (and premium, if any) and interest, or any
Additional Amounts with respect thereto, or a combination
thereof, in an amount sufficient to pay and discharge the
entire indebtedness on such Securities and Coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, or any
Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(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 as to such series
have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if
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the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money 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.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or 402 shall be held in
trust and applied by it, in accordance with the provisions of the 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, the principal (and
premium, if any) and any interest or any Additional Amounts for whose payment
such money has been deposited with the Trustee. Such money need not be
segregated from other funds except to the extent required by law.
All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to 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 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) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company or a
Principal Constituent Bank in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, and adjudging it a bankrupt or insolvent
or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or
a Principal Constituent Bank or for any substantial part of
its property, or ordering the winding-up or liquidation of its
affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(2) the Company or a Principal Constituent Bank shall commence a
voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or shall consent
to the entry of an order for relief in any involuntary case
under any such law, or shall consent to the appointment of or
taking possession by
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a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or a
Principal Constituent Bank or for any substantial part of its
property, or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance
of any of the foregoing.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
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 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal of all the Securities of that series, or such
lesser amount as may be provided for in the Securities of that series, to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
or such lesser amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article Five provided, the Holders of not less than a majority in principal
amount of the Outstanding Securities of that 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 and any
Additional Amounts payable in respect of all
Securities of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest or any Additional Amounts at the rate or
rates borne by or provided for in such 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 as provided in Section 606 hereof; and
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(2) all Events of Default with respect to 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 503. 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 or any Additional Amounts payable in respect of any
Security when such interest or Additional Amounts shall have
become 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 Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and Coupons, the whole amount then due and payable on
such Securities and any Coupons appertaining thereto for principal (and premium,
if any) and interest or Additional Amounts, if any, with interest upon the
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest or
any Additional Amounts, at the rate or rates borne by or provided for in such
Securities. In addition, the Company shall pay to the Trustee 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 forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities and
Coupons (if any), wherever situated.
If a default (as defined in Section 513) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any Coupons appertaining
thereto 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 such Securities 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 proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such
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other obligor or their creditors, the Trustee (irrespective of whether the
principal of the 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 any 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 or such lesser
amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and
any Additional Amounts owing and unpaid in respect of the
Securities and any coupons appertaining thereto 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 or 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.
Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities or Coupons to make such payments to the Trustee or, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of Securities or Coupons, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or Coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of the Holders of the Security or
Coupon in respect of which such judgment has been recovered.
SECTION 506. 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. In
case of the distribution of such money on account of principal (and premium, if
any), interest or any Additional Amounts, upon
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presentation of the 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 payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and Coupons for principal (and premium, if any) and
interest or any Additional Amounts payable 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 aggregate amounts due and payable on such Securities
and Coupons for principal (and premium, if any), interest or
any Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related Coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that 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 to the Trustee 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
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 or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on or any Additional Amounts in
respect of such Security or payment of such Coupon on the respective Stated
Maturity or Maturities specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment. Such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder 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 each such Holder shall continue as though no such proceeding had
been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or Coupon is intended
to be exclusive of any other right or remedy. Every right and remedy, to the
extent permitted by law, shall 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 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
Five or by law to the Trustee or to any Holders of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
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(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
other Holders of Securities of such series.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto waive any past
default (as defined below) hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (and premium, if any) or
interest on or Additional Amounts payable in respect of any
Security of such series or any Coupons appertaining thereto,
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 Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture. The Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to a Responsible Officer of the Trustee,
unless such default shall have been cured or waived.
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However, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on, or any Additional Amounts with respect to, any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of Securities and Coupons of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Sections 315(a) through 315(d) of the
Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, or other
paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or a Company
Order (other than delivery of any Security, together with any
Coupons appertaining thereto to the Trustee for authentication
and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution
of the Board of Directors may be sufficiently evidenced by a
Board Resolution or Board Resolutions;
(3) 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;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) 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 Securities of
any series or any Coupons appertaining thereto pursuant to
this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) 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 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
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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 at the sole cost of the
Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(7) 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;
(8) the Trustee shall not be liable for any action taken,
suffered, omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture;
(9) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act
hereunder.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility and Qualification on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
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SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law and shall be held
uninvested. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as shall be mutually
agreed upon by the Company and the Trustee in writing (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 reasonable expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
and its agents for, and to hold them harmless against, any
loss, liability or expense including taxes (other than taxes
based upon, measured by or determined by the income of the
Trustee) incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on Securities. When the Trustee incurs expenses or renders services
after an Event of Default occurs, the expenses and compensation for the services
of the Trustee are intended to constitute expenses of administration under any
bankruptcy law or any similar federal or state law for the relief of debtors.
The provisions of this Section 606 shall survive the termination of
this Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTERESTS.
There shall at all times be a Trustee hereunder that is a corporation
permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to act as
trustee under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the
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Trust Indenture Act) of at least $50,000,000. 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. If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, the Trustee shall take such action as is required
pursuant to said Section 310(b).
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) 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 pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 609 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 such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and 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 removal, the Trustee being removed may
petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust
Indenture Act after written request therefor by the
Company or by any Holder of a Security who has been a
bona fide Holder of a Security for at least six
months, or
(b) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request
therefor by the Company or by any such Holder of a
Security, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or
any public officer shall take charge or control of
the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case
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(i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with
respect to all Securities, or
(ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who
has been a bona fide Holder of a 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
with respect to all Securities of such
series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 609.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 609, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner required by
Section 609, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written
notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities, if any, of such series
as their names and addresses appear in the Security Register.
If Securities of such series are issued as Bearer Securities,
the Company shall publish notice of such event once in an
Authorized Newspaper in each Place of Payment located outside
the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
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SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and 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. On the request of the
Company and/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, subject nevertheless to its claim, if
any, provided for in Section 606.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates,
(b) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee, and
(c) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder
by more than one Trustee.
Herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, 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 that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, 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, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture other than as hereinafter
expressly set forth, and each such successor Trustee without any further act,
deed or conveyance, shall become vested with all the rights, powers,
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trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(3) 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 (1) or (2) of this Section, as the case may be.
(4) 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 Six.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Without the execution or filing of any paper or any further act on the
part of any of the parties hereto,
(1) any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or
(2) any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or
(3) any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation
shall be otherwise qualified and eligible under this Article Six. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Authenticating
Agents, which may be an Affiliate of the Company, with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of that or those series issued upon original issue or
exchange, registration of transfer or partial redemption or pursuant to Section
306. Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
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include authentication and delivery 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 shall be acceptable to the Company and,
except as specified as contemplated by Section 301, shall at all times
(1) be a corporation that would be permitted by Section 310(a)(1)
and (5) of the Trust Indenture Act to be able to act as a
trustee under an indenture qualified under the Trust Indenture
Act,
(2) be authorized under applicable law and by its charter to act
as such and
(3) have a combined capital and surplus (computed in accordance
with Section 310(a)(2) of the Trust Indenture Act) of not less
that $50,000,000.
If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
If the Authenticating Agent has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, the Authenticating Agent shall take such action as is
required pursuant to said Section 310(b).
Without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent,
(a) any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or
(b) any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or
(c) any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. At such time, the Trustee shall
also
(i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if
any, of the series with respect to which such
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Authenticating Agent will serve, as their names and addresses
appear in the Security Register, and
(ii) if Securities of the series are issued as Bearer Securities,
publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor
Authenticating Agent has its principal office if such office
is located outside the United States.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
As Trustee
By__________________________________
As Authenticating Agent
By__________________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at one time,
and if the Trustee does not have an office capable of authenticating Securities
upon original issuance located in a Place of Payment where the Company wishes to
have Securities of such series authenticated upon original issuance, the
Trustee, if so requested in writing (which writing need not comply with Section
102) by the Company, shall appoint in accordance with this Section an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in
such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto
authorizing such series, 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 so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 702 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(1) The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
(2) Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, 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 312(b) of the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(1) Within 60 days after May 15 of each year commencing with the year
following the first issuance of Securities pursuant to Section 301, if required
by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit
pursuant to Section 313(c) of the Trust Indenture Act a brief report dated as of
such September 15 with respect to any of the events specified in said Section
313(a) which may have occurred since the later of the immediately preceding
September 15 and the date of this Indenture.
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(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and (d) of the Trust Indenture
Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) 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 shall 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;
(2) 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 respect to
compliance by such obligor with the conditions and covenants
of this Indenture as may be required from time to time by such
rules and regulations;
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, 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; and
(4) transmit within 30 days after September 15 of each year to the
Trustee, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer of the Company as to his or her knowledge of such
obligor's compliance with all conditions and covenants under
the Indenture as determined without regard to any period of
grace or requirement of notice provided under the Indenture.
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Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company). However:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity
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 State thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such
time there is more than one Trustee) supplemental hereto,
executed and delivered by the successor Person to the Trustee,
in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest
on or any Additional Amounts in respect of all the Securities
and the performance of every other covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as
having been incurred by the Company or such Subsidiary at the
time of such transaction, no default, and no event (including,
without limitation, default under Section 1006) which, after
notice or lapse of time or both, would become a default, shall
have happened and be continuing; and
(3) each of the Company and the successor Person 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 Eight and that all
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conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person 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 Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company, when authorized by Board Resolutions, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add to or change 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 Registered Securities
to be exchanged for Bearer Securities or to permit or
facilitate the issuance of Securities in uncertified form,
provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201
and 301; or
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(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
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 609(2); or
(6) 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 the provisions of this
Indenture and which shall not adversely affect the interest of
the Holders of Securities of any series or any related Coupons
in any material respect; or
(7) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes
of issue, authentication and delivery of Securities, as herein
set forth; or
(8) to add any additional Events of Default; or
(9) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to conform the
obligations of the Company and the Trustee under this
Indenture to the obligations imposed on such Person hereunder
pursuant to the Trust Indenture Act or under any similar
federal statute hereafter enacted, and any rules or
regulations of the Commission thereunder; or
(10) to modify, delete or add to any of the provisions of this
Indenture other than as contemplated by clauses (1) through
(9) of this Section; provided that any such modification,
deletion or addition shall become effective only with respect
to series of Securities established pursuant to Section 301
after the effective date of such modification, deletion or
addition.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding 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 Board Resolutions, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture. However, no such
supplemental Indenture, without the consent of the Holder of each Outstanding
Security affected thereby, shall
(1) change the Stated Maturity of the principal of any Security,
(2) any installment of interest on, any Security,
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(3) reduce the principal amount of any Security or the rate of
interest thereon or any Additional Amounts payable in respect
thereof,
(4) any premium payable upon the redemption thereof,
(5) change the obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)),
(6) 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,
(7) the amount thereof provable in bankruptcy pursuant to Section
504,
(8) change the Place of Payment currency in which any Security or
any premium or the interest thereon is payable,
(9) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date),
(10) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1404 for
quorum or voting,
(11) modify any of the provisions of this Section, or Sections 512,
513 or Section 1008, 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 Security affected thereby, or
(12) modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the
Holders.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of 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.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article Nine or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
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
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes.
Every Holder of a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupons appertaining thereto shall be bound by such
supplemental indenture.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
SECTION 907. SUBORDINATION UNIMPAIRED.
No supplemental indenture entered into under this Article Nine shall
modify, directly or indirectly, the provisions of Article Fifteen or the
definition of Senior Indebtedness in Section 101 in any manner that might alter
or impair the subordination of the Securities with respect to
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Senior Indebtedness then outstanding, unless each holder of such Senior
Indebtedness has consented thereto in writing.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on or any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any Coupons appertaining thereto and this Indenture. Any interest
due on and any Additional Amounts payable in respect of Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1004 in respect of principal of (or premium, if any, on) such a
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.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States)
(1) may be presented or surrendered for payment,
(2) where Securities of that series may be surrendered for
registration of transfer or exchange, and
(3) where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be
served.
If Securities of a series are issuable as Bearer Securities, the
Company shall 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 Securities of such series and the related
Coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of such series pursuant to Section
1004).
If the 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 shall maintain a paying agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the 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 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
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thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related Coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1004) at the place
specified for the purpose pursuant to Section 301. The Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise specified as contemplated by Section 301, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States. However, payment of principal of and any
premium and interest in U.S. dollars (including Additional Amounts payable in
respect thereof) on any Bearer Security may be made at the Corporate Trust
Office or any office or agency designated by the Company in the Borough of
Manhattan, The City of New York if, but only if, payment of the full amount of
such principal, premium, interest or Additional Amounts 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.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations. However, no such designation or rescission shall in any
manner relieve the Company of their obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise specified as contemplated by Section 301, the Company
hereby designates as the Place of Payment for each series the Corporate Trust
Office of the Trustee. Pursuant to Section 301(9) of this Indenture, the Company
may subsequently appoint a place or places in the Borough of Manhattan, The City
of New York where such Securities may be payable.
SECTION 1003. MONEY FOR 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 Securities, it will, on or before each due date of the
principal of (and premium, if any), or interest on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person 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 so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any), or interest on, any Securities of that series, deposit
with any 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
action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series
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 Securities of that series) in the
making of any payment of principal (and premium, if any) or
interest on the Securities of that series; 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 obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent. 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.
Except as otherwise provided hereby or pursuant hereto, 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 and
Additional Amounts on any Security of any series 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. The Holder of such Security or any
Coupon appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease. However, the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
each Place of Payment for such series or to be mailed to Holders of Registered
Securities for such series, 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 nor shall it be later than two
years after such principal (and premium, if any) or interest has become due and
payable, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security of any
such series or any Coupon
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appertaining thereto Additional Amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
(or premium, if any) or interest on, or in respect of, any Security of any
series or any Coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms 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.
Except as otherwise provided herein or pursuant hereto, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of that series shall not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is made,
and at least 10 days prior to each date of payment or principal and any premium
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 principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal (and premium, if any) of or
interest on the Securities of that series shall be made to Holders of Securities
of that series or the Coupons appertaining thereto who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or Coupons. The Company agrees to pay to the Trustee or
such Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 1005. STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN DEFAULTS.
(1) The Company will, in addition to the reports required by Section
704(4), deliver to the Trustee, within 120 days after the end of each fiscal
year (which on the date hereof ends on December 31), commencing December 31,
1999, a written statement, which need not comply with Section 102, signed by the
Chairman of the Board, a Deputy Chairman, a Vice Chairman, the President or a
Vice President and by the Treasurer or an Assistant Treasurer of the Company,
stating, as to each signer thereof, that
(a) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review,
(i) the Company has fulfilled all of its under this
Indenture throughout such year, or, if there has been
a default in the fulfillment of any such
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obligation, specifying each such default known to him
and the nature and status thereof, and
(ii) no event has occurred and is continuing which is, or
after notice or lapse of time or both would become, a
default or an Event of Default, or, if such an event
has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
(2) The Company will deliver to the Trustee as soon as possible, and in
any event, within five days after the occurrence thereof, written notice of any
event which after notice or lapse of time or both would become an Event of
Default.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent,
(1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the
Company or any Subsidiary. However, the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises and the corporate
existence, rights (charter and statutory) and franchises of each Principal
Constituent Bank. However, the Company shall not be required to preserve any
such corporate existence, right or franchise if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries considered as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1006 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision 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 term, provision or condition shall remain in full force and
effect.
SECTION 1009. CALCULATION OF ORIGINAL ISSUE DISCOUNT
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article Eleven.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by Board Resolution. In case of any redemption at the election of the Company of
the Securities of any series, with the same issue date, interest rate and Stated
Maturity, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue date,
interest rate, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series 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 of the principal amount of Registered Securities of such
series. However, no such
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partial redemption shall reduce the portion of the principal amount of a
Registered Security of such series not redeemed to less than the minimum
denomination for a Security of such series established herein pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any 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 Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities 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, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the CUSIP number, if any,
(4) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities
to be redeemed,
(5) in case any Registered Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Registered Security or Registered Securities of
authorized denominations for the principal amount thereof
remaining unredeemed,
(6) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed only,
against tender of such Security and any Coupons appertaining
thereto, and, if applicable,
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that interest and Additional Amounts, if any, thereon shall
cease to accrue on and after said date,
(7) the place or places where such Securities, together, in the
case of Bearer Securities with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(8) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, 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 sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest (or
any Additional Amounts) to the Redemption Date. However, 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). Furthermore, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates according to their terms and the 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
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
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Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted. However,
interest (or any Additional Amounts) 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 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 Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (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 thereof or his attorney
duly authorized in writing). The Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Registered Security or Securities of the same series, containing identical
terms and provisions, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a Security in global
form is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository for such
Security in global form as shall be specified in the Company Order with respect
thereto to the Trustee, without service charge, a new Security in global form in
a denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article Twelve shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series
(1) deliver Outstanding Securities of such series (other than any
of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been
released to the Company), together in the case of any Bearer
Securities of such series with all unmatured Coupons
appertaining thereto, and
(2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the
terms of such series of Securities or through the application
of permitted optional sinking fund payments pursuant to the
terms of such Securities, provided that such series of
Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series 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. However, 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 Securities of that series
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 SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory 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 and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment. The
Company will also deliver to the Trustee any Securities to be so credited and
not theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 60 days before each such sinking fund payment date the
Trustee shall select the 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 Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be canceled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of such series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1401, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to be issued as Bearer Securities, in London, as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 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 Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be
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taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series,
or
(2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In 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 chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso 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 Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly
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reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or 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 Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him or her. However, no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting to be not Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
SUBORDINATION
SECTION 1501. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities, by its
acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities and the payment of the principal of (and premium, if
any) and interest on and any Additional Amounts payable in respect thereof is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of Senior Indebtedness.
Anything in this Indenture or in the Securities of any series to the
contrary notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and junior in right of payment, to the extent and in the manner
hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization, arrangement or
other similar proceedings in connection therewith, relative to
the Company or to its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding-up of the Company, whether or not involving insolvency
or bankruptcy, then the holders of Senior Indebtedness shall
be entitled to receive payment in full of all principal,
premium and interest on all Senior Indebtedness before the
Holders of the Securities are entitled to receive any payment
on account of principal, premium, if any, interest or
Additional Amounts upon the Securities, and to that end (but
subject to the power of a court of competent jurisdiction to
make other equitable
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provisions reflecting the rights conferred in the Securities
upon Senior Indebtedness and the Holders thereof with respect
to the subordinated indebtedness represented by the Securities
and the Holders hereof by a lawful plan of reorganization
under applicable bankruptcy law) the holders of Senior
Indebtedness shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities, which
may be payable or deliverable in any such proceedings in
respect of the Securities after giving effect to any
concurrent payment or distribution in respect of such Senior
Indebtedness, except securities which are subordinate and
junior in right of payment to the payment of all Senior
Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or
otherwise becomes due and payable before its expressed
maturity because of the occurrence of an Event of Default
hereunder (under circumstances when the provisions of the
foregoing clause (1) or the following clause (3) shall not be
applicable), the holders of Senior Indebtedness outstanding at
the time such Security so becomes due and payable because of
such occurrence of an Event of Default hereunder shall, so
long as such declaration has not been rescinded and annulled
pursuant to Section 502, be entitled to receive payment in
full of all principal of, and premium and interest on, all
such Senior Indebtedness before the Holders of the Securities
of such series are entitled to receive any payment on account
of principal of, premium, if any, or interest and Additional
Amounts on the Securities of such series. However, nothing
herein shall prevent the Holders of Securities from seeking
any remedy allowed at law or at equity so long as any judgment
or decree obtained thereby makes provision for enforcing this
clause; and
(3) In the event that any default shall occur and be continuing
with respect to any Senior Indebtedness permitting the holders
of such Senior Indebtedness to accelerate the maturity
thereof, if either
(a) notice of such default, in writing or by telegram,
shall have been given to the Company and to the
Trustee, provided that judicial proceedings shall be
commenced in respect of such default within 180 days
in the case of a default in payment of principal or
interest and within 90 days in the case of any other
default after the giving of such notice, and provided
further that only one such notice shall be given
pursuant to this Section 1501(3) in any twelve months
period, or
(b) judicial proceedings shall be pending in respect of
such default,
the Holders of the Securities and the Trustee for their
benefit shall not be entitled to receive any payment on
account of principal, premium, if any, or interest and
Additional Amounts thereon (including any such payment which
would cause such default) unless payment in full of all
principal of, and premium and interest
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on, such Senior Indebtedness shall have been made or provided
for. The Trustee, forthwith upon receipt of any notice
received by it pursuant to this Section 1501(3), shall, as
soon as practicable, send a notice thereof to each Holder of
Securities at the time outstanding as the names and addresses
of such Holders appear on the Security Register.
In case despite the foregoing provisions, any payment or distribution
shall, in any such event, be paid or delivered to any Holder of the Securities
or to the Trustee for their benefit before all Senior Indebtedness shall have
been paid in full, such payment or distribution shall be held in trust for and
so paid and delivered to the holders of Senior Indebtedness (or their duly
authorized representatives) until all Senior Indebtedness shall have been paid
in full.
The Company shall give written notice to the Trustee within five days
after the occurrence of any insolvency, bankruptcy, receivership, liquidation,
reorganization, arrangement or similar proceeding of the Company within the
meaning of this Section 1501. Upon any payment or distribution of assets of the
Company referred to in this Article Fifteen, the Trustee, subject to the
provisions of Section 315(a) through 315(b) of the Trust Indenture Act, and the
Holders of the Securities shall be entitled to rely upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors or other
liquidating agent making such payment or distribution, delivered to the Trustee
or to the Holders of Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen.
The Trustee shall be entitled to conclusively rely on the delivery to
it of a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee or
agent on behalf of any such holder). In the event that the Trustee determines,
in good faith, that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section 1501, the Trustee may request such person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness 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 Section 1501,
and if such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
SECTION 1502. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness to which the
indebtedness evidenced by the Securities is in the circumstances subordinated as
provided in Section 1501, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until all amounts owing on the Securities shall be paid in
full. As between the Company, its creditors other than holders of such Senior
Indebtedness, and the Holders of the Securities, no such payment or distribution
made to the holders of such Senior Indebtedness by virtue of this Article
Fifteen which otherwise would have been made to the
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Holders of the Securities shall be deemed to be a payment by the Company on
account of such Senior Indebtedness, it being understood that the provisions of
this Article Fifteen are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1503. OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in the Securities,
(1) is intended to or shall impair as between its creditors other
than the holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company which is absolute
and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any), interest on, or any
Additional Amounts with respect to, the Securities as and when
the same shall become due and payable in accordance with their
terms, or
(2) is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other
than the holders of Senior Indebtedness, or
(3) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if
any, under this Article Fifteen of the holders of Senior
Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article Fifteen.
SECTION 1504. PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, or in any of the Securities, shall affect the obligation of the
Company to make, or prevent the Company from making payment of the principal of
(or premium, if any), interest or any Additional Amounts on the Securities in
accordance with the provisions hereof and thereof, except as otherwise provided
in this Article Fifteen.
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SECTION 1505. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Securities, by his or her acceptance thereof, authorizes
and directs the Trustee in his or her behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fifteen and appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
SECTION 1506. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article Fifteen or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee, or the taking of any other action by the Trustee,
unless and until the Trustee shall have received written notice thereof from the
Company, any Holder of the Securities, any paying agent of the Company or the
holder or representative of any class of Senior Indebtedness.
SECTION 1507. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
Except as otherwise provided in the Trust Indenture Act, the Trustee
shall be entitled to all the rights set forth in this Article Fifteen with
respect to any Senior Indebtedness at the time held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Notwithstanding
anything in this Indenture or in the Securities of any series, nothing in this
Article Fifteen shall apply to claims of or payment to the Trustee under or
pursuant to Sections 506 and 606.
With respect to holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Fifteen, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders, the Company or any other Person monies or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article
Fifteen or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Fifteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
SECTION 1508. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein 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
non-compliance by the Company with the terms, provisions or covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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This instrument 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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
NATIONAL CITY CORPORATION
Attest:
/s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
[SEAL] Title: Senior Vice President and
Treasurer
THE BANK OF NEW YORK
By /s/ Van X. Xxxxx
-----------------------------------
Name: Van X. Xxxxx
Title: Assistant Vice President
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STATE OF OHIO )
:
COUNTY OF CUYAHOGA )
On the 28th day of April, 1999, before me personally came Xxxxxx X.
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is a Senior Vice President of NATIONAL CITY CORPORATION, a Delaware corporation,
one of the persons described in and who executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
[NOTARIAL SEAL] /s/ Xxxxx Xxxx Xxxxx
---------------------------------
Notary Public
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of ________, 1999, before me personally came
Van X. Xxxxx, to me known, who, being by me duly sworn, did depose and say that
he is an Assistant Vice President of THE BANK OF NEW YORK, a New York banking
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporation's seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
/s/ Xxxxxx Xxxxxxx
--------------------------
Notary Public
[NOTARIAL SEAL]
75
