Exhibit 4.6
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NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
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SUBORDINATED INDENTURE
---------------
Dated as of __________ __, 2003
Subordinated Debt Securities
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1
Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Subordinated Indenture, dated as of ____________ __, 2003
Trust Indenture Act Section Indenture Section
#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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2
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Subordinated Indenture.
3
TABLE OF CONTENTS
PAGE
Parties...........................................................................................................9
Recitals..........................................................................................................9
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION .....................................................................................9
Section 101. Definitions............................................................................9
Act............................................................................................10
Additional Amounts.............................................................................10
Affiliate......................................................................................10
Authenticating Agent...........................................................................10
Authorized Newspaper...........................................................................10
Bank ..........................................................................................10
Bearer Security................................................................................11
Board of Directors.............................................................................11
Board Resolution...............................................................................11
Business Day...................................................................................11
Called Securities..............................................................................11
Capital Stock..................................................................................11
Commission.....................................................................................11
Common Stock...................................................................................11
Company .......................................................................................11
Company Request and Company Order..............................................................11
Constituent Bank...............................................................................11
Convertible Security or Convertible Securities.................................................12
Conversion Price...............................................................................12
Corporate Trust Office.........................................................................12
Corporation....................................................................................12
Coupon.........................................................................................12
Date of Conversion.............................................................................12
Defaulted Interest.............................................................................12
Dollars or $...................................................................................12
Event of Default...............................................................................12
Government Obligations.........................................................................12
Holder.........................................................................................13
Indenture......................................................................................13
Independent Public Accountants.................................................................13
Interest.......................................................................................13
Interest Payment Date..........................................................................13
Legal Holiday..................................................................................14
Maturity.......................................................................................14
Officers' Certificate..........................................................................14
Opinion of Counsel.............................................................................14
Original Issue Discount Security...............................................................14
4
Outstanding....................................................................................14
Paying Agent...................................................................................15
Person.........................................................................................15
Place of Payment...............................................................................15
Predecessor Security...........................................................................15
Principal Constituent Bank.....................................................................16
Redemption Date................................................................................16
Redemption Price...............................................................................16
Registered Security............................................................................16
Regular Record Date............................................................................16
Responsible Officer............................................................................16
Security or Securities.........................................................................16
Security Register and Security Registrar.......................................................16
Senior Indebtedness............................................................................16
Special Record Date............................................................................17
Stated Maturity................................................................................17
Subsidiary.....................................................................................17
Trust Indenture Act............................................................................17
Trustee........................................................................................17
United States..................................................................................17
United States Alien............................................................................17
U.S. Depository or Depository..................................................................18
Vice President.................................................................................18
Voting Stock...................................................................................18
Section 102. Compliance Certificates and Opinions..................................................18
Section 103. Form of Documents Delivered to Trustee................................................19
Section 104. Acts of Holders.......................................................................19
Section 105. Notices, etc., to Trustee and Company.................................................21
Section 106. Notice to Holders; Waiver.............................................................22
Section 107. Language of Notices...................................................................23
Section 108. Conflict with Trust Indenture Act.....................................................23
Section 109. Effect of Headings and Table of Contents..............................................23
Section 110. Successors and Assigns................................................................23
Section 111. Separability Clause...................................................................23
Section 112. Benefits of Indenture.................................................................23
Section 113. Governing Law.........................................................................23
Section 114. Legal Holidays........................................................................24
ARTICLE TWO SECURITIES FORMS....................................................................................24
Section 201. Forms Generally.......................................................................24
Section 202. Form of Trustee's Certificate of Authentication.......................................24
Section 203. Securities in Global Form.............................................................25
ARTICLE THREE THE SECURITIES....................................................................................25
Section 301. Amount Unlimited; Issuable in Series..................................................25
Section 302. Denominations.........................................................................29
Section 303. Execution, Authentication, Delivery and Dating........................................29
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Section 304. Temporary Securities..................................................................31
Section 305. Registration, Transfer and Exchange...................................................32
Section 306. Mutilated, Destroyed, Lost and Stolen Securities......................................36
Section 307. Payment of Interest; Interest Rights Preserved........................................37
Section 308. Persons Deemed Owners.................................................................38
Section 309. Cancellation..........................................................................39
Section 310. Computation of Interest...............................................................39
Section 311. CUSIP Numbers.........................................................................39
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................................39
Section 401. Satisfaction and Discharge of Indenture...............................................39
Section 402. Application of Trust Money............................................................41
ARTICLE FIVE REMEDIES...........................................................................................42
Section 501. Events of Default.....................................................................42
Section 502. Acceleration of Maturity; Rescission and Annulment....................................42
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................43
Section 504. Trustee May File Proofs of Claim......................................................44
Section 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.............................................................45
Section 506. Application of Money Collected........................................................45
Section 507. Limitation on Suits...................................................................46
Section 508. Unconditional Right of Holders to Receive Principal,
Premium, Interest and Additional Amounts.............................................46
Section 509. Restoration of Rights and Remedies....................................................47
Section 510. Rights and Remedies Cumulative........................................................47
Section 511. Delay or Omission Not Waiver..........................................................47
Section 512. Control by Holders....................................................................47
Section 513. Waiver of Past Defaults...............................................................48
Section 514. Waiver of Stay or Extension Laws......................................................48
ARTICLE SIX THE TRUSTEE.........................................................................................48
Section 601. Notice of Defaults....................................................................48
Section 602. Certain Rights of Trustee.............................................................49
Section 603. Not Responsible for Recitals or Issuance of Securities................................50
Section 604. May Hold Securities...................................................................50
Section 605. Money Held in Trust...................................................................51
Section 606. Compensation And Reimbursement........................................................51
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests........................51
Section 608. Resignation and Removal; Appointment of Successor.....................................52
Section 609. Acceptance of Appointment by Successor................................................54
Section 610. Merger, Conversion, Consolidation or Succession to Business...........................55
Section 611. Appointment of Authenticating Agent...................................................56
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ARTICLE SEVEN HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY.........................................................................58
Section 701. Company to Furnish Trustee Names and Addresses of Holders.............................58
Section 702. Preservation of Information; Communications to Holders................................59
Section 703. Reports by Trustee....................................................................59
Section 704. Reports by Company....................................................................59
ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES..................................................................60
Section 801. Company May Consolidate, Etc., Only on Certain Terms..................................60
Section 802. Successor Corporation Substituted for Company.........................................61
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................61
Section 901. Supplemental Indentures Without Consent Of Holders....................................61
Section 902. Supplemental Indentures with Consent of Holders.......................................63
Section 903. Execution of Supplemental Indentures..................................................64
Section 904. Effect of Supplemental Indentures.....................................................65
Section 905. Conformity with Trust Indenture Act...................................................65
Section 906. Reference in Securities to Supplemental Indentures....................................65
Section 907. Subordination Unimpaired..............................................................65
ARTICLE TEN COVENANTS...........................................................................................66
Section 1001. Payment of Principal, Premium, if any, and Interest...................................66
Section 1002. Maintenance of Office or Agency.......................................................66
Section 1003. Money For Securities Payments to Be Held In Trust.....................................67
Section 1004. Additional Amounts....................................................................69
Section 1005. Statement as to Compliance; Notice of Certain Defaults................................69
Section 1006. Payment of Taxes And Other Claims.....................................................70
Section 1007. Corporate Existence...................................................................70
Section 1008. Waiver of Certain Covenants...........................................................71
Section 1009. Calculation of Original Issue Discount................................................71
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................71
Section 1101. Applicability of Article..............................................................71
Section 1102. Election to Redeem; Notice to Trustee.................................................71
Section 1103. Selection by Trustee of Securities to Be Redeemed.....................................72
Section 1104. Notice of Redemption..................................................................72
Section 1105. Deposit of Redemption Price...........................................................73
Section 1106. Securities Payable on Redemption Date.................................................74
Section 1107. Securities Redeemed in Part...........................................................75
Section 1108. Conversion Arrangements on Call for Redemption........................................75
ARTICLE TWELVE SINKING FUNDS....................................................................................76
Section 1201. Applicability of Article..............................................................76
Section 1202. Satisfaction of Sinking Fund Payments With Securities.................................76
Section 1203. Redemption of Securities for Sinking Fund.............................................77
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ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS.............................................................77
Section 1301. Applicability of Article..............................................................77
ARTICLE FOURTEEN MEETINGS OF HOLDERS............................................................................78
Section 1401. Purposes For Which Meetings May Be Called.............................................78
Section 1402. Call, Notice And Place of Meetings....................................................78
Section 1403. Persons Entitled to Vote at Meetings..................................................78
Section 1404. Quorum; Action........................................................................79
Section 1405. Determination of Voting Rights; Conduct And Adjournment
of Meetings...........................................................................79
Section 1406. Counting Votes and Recording Action of Meetings.......................................80
ARTICLE FIFTEEN SUBORDINATION...................................................................................81
Section 1501. Securities Subordinated to Senior Indebtedness........................................81
Section 1502. Subrogation...........................................................................83
Section 1503. Obligation of Company Unconditional...................................................83
Section 1504. Payments on Securities Permitted......................................................84
Section 1505. Effectuation of Subordination by Trustee..............................................84
Section 1506. Knowledge of Trustee..................................................................84
Section 1507. Trustee's Relation to Senior Indebtedness.............................................84
Section 1508. Rights of Holders of Senior Indebtedness Not Impaired.................................85
ARTICLE SIXTEEN CONVERSION......................................................................................85
Section 1601. Conversion Privilege..................................................................85
Section 1602. Manner of Exercise of Conversion Privilege............................................85
Section 1603. Cash Adjustment Upon Conversion.......................................................86
Section 1604. Conversion Price......................................................................87
Section 1605. Adjustment of Conversion Price........................................................87
Section 1606. Effect of Reclassification, Consolidations, Mergers or Sales
on Conversion Privilege...............................................................90
Section 1607. Taxes on Conversion...................................................................90
Section 1608. Company to Reserve Common Stock.......................................................90
Section 1609. Disclaimer by Trustee of Responsibility for Certain Matters...........................91
Section 1610. Company to Give Notice of Certain Events..............................................91
ARTICLE SEVENTEEN MISCELLANEOUS PROVISIONS......................................................................92
Section 1701. Securities in Foreign Currencies......................................................92
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SUBORDINATED INDENTURE, dated as of ___________ __, 2003 (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
9
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted 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
10
(ii) any trust company organized under any of the foregoing laws.
"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.
"Called Securities" means any Convertible Security that is called for
redemption by the Company.
"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.
11
"Convertible Security" or "Convertible Securities" means any Security or
Securities, as the case may be, which are by their terms convertible into Common
Stock.
"Conversion Price" means the price per share of Common Stock from time to
time in effect at which any Convertible Security may be converted into Common
Stock as determined by or pursuant to the terms of this Indenture.
"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.
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Date of Conversion" with respect to any Convertible Security or portion
thereof to be converted, means the date on which such Convertible Security shall
be surrendered for conversion and notice given in accordance with the provisions
of Article Sixteen.
"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
12
(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
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.
13
"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.
"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
14
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 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
15
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 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;
16
(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.
"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
17
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 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
18
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.
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
19
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 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
20
(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 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
21
(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, 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
22
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.
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.
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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, is not 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.
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
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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.
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.
25
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, 1107 or 1602 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;
(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
26
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;
(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;
27
(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;
28
(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,
29
executed by the Company, to the Trustee for authentication, and, provided that
the Board 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,
(i) 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.
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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 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
31
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 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, the Trustee 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
32
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 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.
33
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 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.
34
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 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.
35
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,
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
36
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 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
37
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.
(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.
38
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
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.
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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,
(xxx) Coupons 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,
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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 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 money 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.
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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 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
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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
(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,
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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 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.
44
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 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.
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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 reasonably satisfactory indemnity
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.
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.
46
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
(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.
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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. 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.
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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 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;
49
(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
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that has a combined capital and surplus (computed in accordance with Section
310(a)(2) of the 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,
52
then, in any such case
(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
53
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
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
54
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, 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.
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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 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.
56
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 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.
57
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.
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.
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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.
(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;
59
(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.
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
60
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 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:
61
(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
(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
62
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;
(10) to make provisions with respect to the conversion rights of Holders of
Convertible Securities pursuant to the requirements of Section 1606;
or
(11) 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,
(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,
63
(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.
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.
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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 Senior
Indebtedness then outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing.
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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 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
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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.
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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 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
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(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 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.
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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 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.
If any Convertible Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.
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,
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(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) in the case of Convertible Securities, the Conversion Price then
in effect, the date on which the right to convert the principal
amount of the Securities or the portions thereof to be redeemed
will terminate and the place or places where such Securities may
be surrendered for conversion,
(7) 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, that interest and Additional Amounts, if any,
thereon shall cease to accrue on and after said date,
(8) 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
(9) 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.
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If any Convertible Security or portion thereof called for redemption is
converted pursuant to Article Sixteen, any money deposited with the Trustee or
so segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of the Security on a Regular
Record Date preceding such conversion to receive interest) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
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 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.
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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.
SECTION 1108. CONVERSION ARRANGEMENTS ON CALL FOR REDEMPTION.
Notwithstanding anything to the contrary contained in this Indenture, in
connection with any redemption of convertible Securities of any series, the
Company, by an agreement with one or more investment bankers or other
purchasers, may arrange for such purchasers to purchase all such Convertible
Securities called for redemption (the "Called Securities") which are either (i)
surrendered for redemption or (ii) not duly surrendered for redemption or
conversion prior to the close of business on the Redemption Date, and to convert
the same into shares of Common Stock, by the purchasers' depositing with the
Trustee (acting as Paying Agent with respect to the deposit of such amount and
as conversion agent with respect to the conversion of such Called Securities),
in trust for the Holders of the Called Securities, on or prior to the Redemption
Date in the manner agreed to by the Company and such purchasers, an amount
sufficient to pay the Redemption Price, payable by the Company on redemption of
such Called Securities. In connection with any such arrangement for purchase and
conversion, the Trustee as Paying Agent shall pay on or after the Redemption
Date such amounts so deposited by the purchasers in exchange for Called
Securities surrendered for redemption prior to the close of business on the
Redemption Date and for all Called Securities surrendered after such Redemption
Date. Notwithstanding anything to the contrary contained in this Article Eleven,
the obligation of the Company to pay the Redemption Price of such Called
Securities shall be satisfied and discharged to the extent such amount is so
paid by such purchasers. However, nothing in this Section 1108 shall in any way
relieve the Company of the obligation to pay such Redemption Price on all Called
Securities to the extent such amount is not so paid by said purchasers. For all
purposes of this Indenture, any Called Securities surrendered by the Holders for
redemption, and any Called Securities not duly surrendered for redemption or
conversion prior to the close of business on the Redemption Date, shall be
deemed acquired by such purchasers from such Holders and surrendered by such
purchasers for conversion and shall in all respects be deemed to have been
converted, all as of immediately prior to the close of business on the
Redemption Date, subject to the deposit by the Purchasers of the above amount as
aforesaid. Nothing in this Section 1108 shall in any way limit the right of any
Holder of a Security to convert his Security pursuant to the
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terms of this Indenture and of such Security at any time prior to the close of
business on the Redemption Date applicable thereto.
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.
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
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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.
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.
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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 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.
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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 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
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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.
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.
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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 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
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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 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
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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 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
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(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.
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.
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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.
ARTICLE SIXTEEN
CONVERSION
SECTION 1601. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article Sixteen
and the terms of the Convertible Securities of the series proposed to be
converted, at the option of the Holder, any Convertible Security or any portion
of the principal amount thereof which is $1,000 or an integral multiple thereof,
may be converted into shares of Common Stock, as said shares shall be
constituted at the Date of Conversion, at the Conversion Price for such
Convertible Securities of such series in effect at the Date of Conversion.
SECTION 1602. MANNER OF EXERCISE OF CONVERTIBLE PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted shall surrender such Convertible Security
to the Company at its office or agency in
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the Borough of Manhattan, The City of New York, together with the conversion
notice in the form provided on the Securities (or separate written notice) duly
executed, and, if so required by the Company, accompanied by instruments of
transfer, in form satisfactory to the Company and to the Trustee, duly executed
by the Holder or by his duly authorized attorney in writing. Any Registered
Convertible Security so surrendered during the period from the close of business
on the Regular Record Date preceding an Interest Payment Date for such
Registered Convertible Security to the opening of business on such Interest
Payment Date shall (unless any such Registered Convertible Security or the
portion thereof being converted shall have been called for redemption on a
Redemption Date during such period, in which event no interest shall be payable
with respect to such Registered Convertible Security or portion thereof, as the
case may be, following such Redemption Date) also be accompanied by payment in
New York Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of such Registered Convertible Security then being converted;
provided, however, that no such payment need be made if there shall exist, at
the time of conversion, a default in the payment of interest on the Convertible
Securities of such series. Except as provided in the immediately preceding
sentence, no adjustment shall be made for interest accrued on any Convertible
Security that shall be converted or for dividends on any shares of Common Stock
that shall be delivered upon the conversion of such Convertible Securities. The
funds so delivered to such office or agency shall be paid to the Company on or
after such Interest Payment Date, unless the Company shall default in the
payment of the interest due on such Interest Payment Date, in which event such
funds shall be repaid to the Person who delivered the same. As promptly as
practicable after the surrender of any Convertible Security for conversion as
aforesaid, the Company shall deliver at said office or agency to such Holder, or
on his written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof and a check or cash in respect of any fraction of a share of Common
Stock otherwise deliverable upon such conversion, all as provided in this
Article Sixteen, together with a Convertible Security or Convertible Securities
of the same series in principal amount equal to the unconverted and unredeemed
portion, if any, of the Convertible Security so converted in accordance with
Section 305 hereof. Such conversion shall be deemed to have been effected on the
date on which such notice shall have been received at said office or agency and
such Convertible Security shall have been surrendered as aforesaid, and the
Person or Persons in whose name or names any certificate or certificates for
shares of Common Stock shall be deliverable upon such conversion shall be deemed
to have become on said date the Holder or Holders of record of the shares
represented thereby, provided, however, that any such surrender on any date when
the stock transfer books of the Company shall be closed shall constitute the
Person or Persons in whose name or names the certificates are to be delivered as
the record Holder or Holders thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date of such surrender.
SECTION 1603. CASH ADJUSTMENT UPON CONVERSION.
The Company shall not be required to deliver fractions of shares of Common
Stock upon conversions of Convertible Securities. If more than one Convertible
Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be deliverable upon conversion thereof shall
be computed on the basis of the aggregate principal amount of the Securities so
surrendered. If any fractional interest in a share of Common Stock
86
would be deliverable upon the conversion of any Convertible Security or
Securities, the Company shall make an adjustment therefor in cash equal to the
current market value of such fractional interest computed to the nearest cent
either on the basis of the last reported sale price regular way of the Common
Stock on the New York Stock Exchange (or, if not listed on the New York Stock
Exchange, then on such other exchange on which the shares of Common Stock are
listed as the Company may designate) on the last Business Day prior to the Date
of Conversion or, if there shall not have been a sale on such last Business Day,
on the basis of the average of the bid and asked quotations therefor on such
exchange on such last Business Day or, if the Common Stock shall not then be
listed on any exchange, at the highest bid quotation in the over-the- counter
market on such last Business Day as reported by the National Association of
Securities Dealers through NASDAQ, its automated system for reporting quotes, or
its successor or such other generally accepted source of publicly reported bid
and asked quotations as the Company may reasonably designate.
SECTION 1604. CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible Securities
shall be the initial Conversion Price set forth on the Officers' Certificate or
supplemental indenture establishing such series adjusted as provided in this
Article Sixteen.
SECTION 1605. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible Securities
shall be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to time while the
Securities of any series are outstanding, (i) pay a dividend on its Common Stock
in shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a larger number of shares, or (iii) combine its outstanding Common Stock
into a smaller number of shares, the Conversion Price for such series in effect
immediately prior thereto shall be adjusted so that the Holder of any Security
of such series thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock or other securities of the Company
which he would have owned or have been entitled to receive after the happening
of any of the events described above, had such Convertible Security of such
series been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subdivision (a) shall become effective, in the
case of a dividend, on the payment date retroactively to immediately after the
opening of business on the day following the record date for the determination
of shareholders entitled to receive such dividend, subject to the provisions of
paragraph (g) of this Section 1605, and shall become effective in the case of a
subdivision or combination immediately after the opening of business on the day
following the day when such subdivision or combination, as the case may be,
becomes effective.
(b) In case the Company shall, at any time or from time to time while the
Convertible Securities of any series are outstanding, issue rights or warrants
to all holders of its shares of Common Stock entitling them (for a period
expiring within 45 days of the record date mentioned
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below) to subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share of Common Stock (as defined in
paragraph (d) below) at such record date, the Conversion Price of any series of
Convertible Securities in effect immediately prior to the issuance of such
rights or warrants shall be adjusted as follows: the number of shares of Common
Stock into which $1,000 principal amount of Convertible Securities of such
series was theretofore convertible shall be multiplied by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding
immediately prior to such record date plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately prior to
such record date plus the number of shares which the aggregate offering price of
the total number of shares so offered would purchase at such current market
price; and the Conversion Price for such series of Convertible Securities shall
be adjusted by dividing $1,000 by the new number of shares into which $1,000
principal amount of Securities of such series shall be convertible as aforesaid.
Such adjustment shall become effective on the date of such issuance
retroactively to immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to receive such
rights or warrants, subject to the provisions of paragraph (g) of this Section
1605. In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such shares,
there shall be taken into account any consideration received by the Company for
such rights or warrants, the value of such consideration, if other than cash, to
be determined by the Board of Directors.
(c) In case the Company shall, at any time from time to time while the
Convertible Securities of any series are outstanding, distribute to all holders
of shares of its Common Stock evidences of its indebtedness or securities or
assets (excluding cash dividends or cash distributions payable out of
consolidated net earnings or retained earnings) or rights or warrants to
subscribe for shares of Common Stock at a price per share less than the current
market price per share of Common Stock, determined in the manner set forth in
paragraph (d) below, but excluding rights or warrants referred to in paragraph
(b) above, the Conversion Price for such series of Convertible Securities in
effect immediately prior to such distribution shall be adjusted by multiplying
the number of shares of Common Stock into which $1,000 principal amount of
Convertible Securities of such series of Convertible Securities was theretofore
convertible by a fraction, of which the numerator shall be the current market
price per share of Common Stock (as defined in paragraph (d) below) on the
record date for such distribution, and of which the denominator shall be such
current market price per share of the Common Stock, less the then fair market
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of such evidences of
indebtedness, securities or assets or of such subscription rights or warrants so
distributed applicable to one share of Common Stock; and the Conversion Price
for such series of Convertible Securities shall be adjusted by dividing $1,000
by the new number of shares into which $1,000 principal amount of Convertible
Securities of such series shall be convertible as aforesaid. Such adjustment
shall become effective on the date of such distribution retroactively to
immediately after the opening of business on the day following the record date
for the determination of shareholders entitled to receive such distribution,
subject to the provisions of paragraph (g) of this Section 1605. For the
purposes of this paragraph (c) consolidated net earnings or retained earnings
shall be computed by adding thereto all charges against retained earnings on
account of dividends paid in shares of Common Stock in respect of which the
Conversion Price has been adjusted, all as determined by
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Independent Public Accountants, whose determination shall be conclusive.
(d) For the purpose of any computation under paragraphs (b) and (c) above,
the current market price per share of Common Stock at any date shall be deemed
to be the average of the market values of the shares of Common Stock for the ten
consecutive Business Days immediately preceding the day in question. The market
value of the Common Stock for each day shall be determined as provided in
Section 1603 hereof.
(e) The Company may make such reductions in the Conversion Price for any
series of Convertible Securities, in addition to those required by paragraphs
(a), (b) and (c) of this Section as it considers to be advisable in order that
any event treated for Federal income tax purposes as a dividend of stock or
stock rights shall not be taxable to the recipients.
(f) Except as herein otherwise provided, no adjustment in the Conversion
Price for any series of Convertible Securities shall be made by reason of the
issuance, in exchange for cash, property or services, of shares of Common Stock,
or any securities convertible into or exchangeable for shares of Common Stock,
or carrying the right to purchase any of the foregoing.
(g) If the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive any dividend or any
subscription or purchase rights or any distribution and shall, thereafter and
before the distribution to shareholders of any such dividend, subscription or
purchase rights or distribution, legally abandon its plan to pay or deliver such
dividend, subscription or purchase rights or distribution, then no adjustment of
the Conversion Price for any series of Convertible Securities shall be required
by reason of the taking of such record.
(h) No adjustment in the Conversion Price for any series of Convertible
Securities shall be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any adjustments
which by reason of this paragraph (h) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article Sixteen shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be.
(i) Whenever the Conversion Price for any series of Convertible Securities
is adjusted as herein provided, the Company shall (i) forthwith place on file at
the Principal Office of the Trustee an Officers' Certificate showing in detail
the facts requiring such adjustment and the Conversion Price after such
adjustment and shall exhibit the same from time to time to any Holder of
Convertible Securities of such series desiring an inspection thereof, and (ii)
cause a notice stating that such adjustment has been effected and the adjusted
Conversion Price to be mailed to the Holders of Registered Convertible
Securities of such series at their last addresses as they shall appear on the
Security Register.
(j) The Company may delete, modify or vary any of the provisions applicable
to conversion of the Convertible Securities of any series, or may add new
provisions applicable thereto, all as may be contained in the Board Resolutions
and Officers' Certificate or supplemental indenture establishing such series.
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SECTION 1606. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR SALES
ON CONVERSION PRIVILEGE.
In case of any reclassification or change of outstanding shares of the
class of Common Stock issuable upon conversion of the Convertible Securities
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination), or in
case of any merger or consolidation of the Company with one or more other
corporations (other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of the
Securities), or in case of the merger of the Company into another corporation,
or in case of any sale or conveyance to another corporation of the property of
the Company as an entirety or substantially as an entirety, the Holder of
Convertible Securities then outstanding shall have the right to convert such
Convertible Security into the kind and amount of shares of capital stock or
other securities and property, including cash, receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock into which such Convertible Security
might have been converted immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. In any such case the Company, or such
successor or purchasing corporation, as the case may be, shall execute with the
Trustee one or more supplemental indentures (which shall conform to the Trust
Indenture Act of 1939 as in force at the date of the execution of such
supplemental indenture) containing provisions to the effect set forth above in
this Section 1606 and providing further for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
Sixteen; and any such adjustment which shall be approved by the Board of
Directors and set forth in such supplemental indenture or supplemental
indentures shall be conclusive for all purposes of this Section, and the Trustee
shall not be under any responsibility to determine the correctness of any
provision contained in such supplemental indenture or supplemental indentures
relating to either the kind or amount of shares of stock or securities or
property receivable by Holders of Securities of any series upon the conversion
of their Convertible Securities after any such reclassification, change,
consolidation, merger, sale or conveyance.
The above provisions of this Section 1606 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
SECTION 1607. TAXES ON CONVERSIONS.
The issue of stock certificates on conversions of Convertible Securities
shall be made without charge to the converting Holder of Convertible Securities
for any tax in respect of the issue thereof. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares in any name other than that of the Holder of
any Registered Convertible Security converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 1608. COMPANY TO RESERVE COMMON STOCK.
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The Company shall at all times reserve and keep available out of the
aggregate of its authorized but unissued shares or its issued shares held in its
treasury, or both, for the purpose of effecting the conversion of the
Securities, such number of its duly authorized shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
Securities.
If any shares of Common Stock reserved or to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly delivered upon conversion, then the Company covenants that it will in
good faith and as expeditiously as possible endeavor to secure registration or
approval, as the case may be.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities shall upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue or delivery thereof.
SECTION 1609. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Convertible Securities of any series to
determine whether any facts exist which may require any adjustment of the
Conversion Price for such series, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same,
subject, however, to the provisions of Sections 315(a) through 315(b) of the
Trust Indenture Act. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property which may at any time
be issued or delivered upon the conversion of any Convertible Security; and
neither of them makes any representation with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or, subject to Sections
315(a) through 315(b) of the Trust Indenture Act, to comply with any of the
covenants of the Company contained in this Article Sixteen.
SECTION 1610. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS.
In the event:
(1) that the Company shall pay any dividend or make any distribution
to the holders of shares of Common Stock otherwise than in cash charged against
consolidated net earnings or retained earnings of the Company and its
consolidated net earnings or retained earnings of the Company and its
consolidated subsidiaries or in Common Stock; or
(2) that the Company shall offer for subscription or purchase, pro
rata, to the holders of shares of Common Stock any additional shares of stock of
any class or any securities convertible into or exchangeable for stock of any
class; or
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(3) of any reclassification or change in outstanding shares of the
class of Common Stock issuable upon the conversion of the Securities (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), or of any merger
or consolidation of the Company with, or merger of the Company into, another
corporation (other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of the
Securities), or of any sale or conveyance to another corporation of the property
of the Company as an entirety or substantially as an entirety;
then, and in any one or more of such events, the Company will give to the
Trustee and each conversion agent written notice thereof at least fifteen days
prior to (i) the record date fixed with respect to any of the events specified
in (1) and (2) above, and (ii) the effective date of any of the events specified
in (3) above; and shall mail promptly a copy of such notice to the Holders of
Registered Convertible Securities at their last addresses as they shall appear
upon the Security Register. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
1701. SECURITIES IN FOREIGN CURRENCIES.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
* * * * *
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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:
By
-------------------------------
Name:
[SEAL] Title:
THE BANK OF NEW YORK
By
-------------------------------
Name:
Title:
93
STATE OF OHIO )
:
COUNTY OF CUYAHOGA )
On the ____ day of ____________, 2003, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________________________ 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] __________________________________
Notary Public
00
XXXXX XX XXX XXXX )
:
COUNTY OF NEW YORK )
On the ____ day of ____________, 2003, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is a __________________________ 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.
[NOTARIAL SEAL] __________________________________
Notary Public
95
