Exhibit 4.5
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NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
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SENIOR INDENTURE
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Dated as of __________ __, 2003
Senior Debt Securities
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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...............................................................................10
Board Of Directors............................................................................10
Board Resolution..............................................................................10
Business Day..................................................................................11
Called Security...............................................................................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................................................11
Conversion Price..............................................................................11
Corporate Trust Office........................................................................11
Corporation...................................................................................12
Coupon........................................................................................12
Date of Conversion............................................................................12
Defaulted Interest............................................................................12
Dollars or $..................................................................................12
Event Of Default..............................................................................12
Government Obligations........................................................................12
Holder .....................................................................................12
Indenture.....................................................................................12
Independent Public Accountants................................................................13
2
Interest .....................................................................................13
Interest Payment Date.........................................................................13
Legal Holiday.................................................................................13
Maturity .....................................................................................13
Officers' Certificate.........................................................................13
Opinion Of Counsel............................................................................13
Original Issue Discount Security..............................................................13
Outstanding...................................................................................13
Paying Agent..................................................................................15
Person .....................................................................................15
Place Of Payment..............................................................................15
Predecessor Security..........................................................................15
Principal Constituent Bank....................................................................15
Redemption Date...............................................................................15
Redemption Price..............................................................................15
Registered Security...........................................................................15
Regular Record Date...........................................................................15
Responsible Officer...........................................................................15
Security or Securities........................................................................15
Security Register and Security Registrar......................................................16
Special Record Date...........................................................................16
Stated Maturity...............................................................................16
Subsidiary....................................................................................16
Trust Indenture Act...........................................................................16
Trustee .....................................................................................16
United States.................................................................................16
United States Alien...........................................................................16
U.S. Depository or Depository.................................................................16
Vice President................................................................................17
Voting Stock..................................................................................17
Section 102. Compliance Certificates and Opinions.............................................17
Section 103. Form of Documents Delivered to Trustee...........................................17
Section 104. Acts of Holders..................................................................18
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Section 105. Notices, Etc., to Trustee and Company............................................20
Section 106. Notice to Holders; Waiver........................................................20
Section 107. Language of Notices..............................................................21
Section 108. Conflict With Trust Indenture Act................................................21
Section 109. Effect of Headings and Table of Contents.........................................21
Section 110. Successors and Assigns...........................................................22
Section 111. Separability Clause..............................................................22
Section 112. Benefits Of Indenture............................................................22
Section 113. Governing Law....................................................................22
Section 114. Legal Holidays...................................................................22
ARTICLE TWO SECURITIES FORMS.................................................................................22
Section 201. Forms Generally..................................................................22
Section 202. Form of Trustee's Certificate of Authentication..................................23
Section 203. Securities in Global Form........................................................23
ARTICLE THREE THE SECURITIES.................................................................................24
Section 301. Amount Unlimited; Issuable in Series.............................................24
Section 302. Denominations....................................................................27
Section 303. Execution, Authentication, Delivery and Dating...................................28
Section 304. Temporary Securities.............................................................29
Section 305. Registration, Transfer and Exchange..............................................30
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................................33
Section 307. Payment of Interest; Interest Rights Preserved...................................34
Section 308. Persons Deemed Owners............................................................36
Section 309. Cancellation.....................................................................36
Section 310. Computation of Interest..........................................................37
Section 311. Cusip Numbers....................................................................37
ARTICLE FOUR SATISFACTION AND DISCHARGE......................................................................37
Section 401. Satisfaction and Discharge of Indenture..........................................37
Section 402. Application of Trust Money.......................................................38
Section 403. Satisfaction, Discharge and Defeasance of Securities of Any Series...............39
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ARTICLE FIVE REMEDIES........................................................................................41
Section 501. Events of Default................................................................41
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..............................................................45
Section 508. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Additional Amounts..................................................46
Section 509. Restoration of Rights and Remedies...............................................46
Section 510. Rights and Remedies Cumulative...................................................46
Section 511. Delay or Omission Not Waiver.....................................................47
Section 512. Control By Holders...............................................................47
Section 513. Waiver of Past Defaults..........................................................47
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........................................................48
Section 603. Not Responsible For Recitals or Issuance of Securities...........................50
Section 604. May Hold Securities..............................................................50
Section 605. Money Held In Trust..............................................................50
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...........................................53
Section 610. Merger, Conversion, Consolidation or Succession to Business......................54
Section 611. Appointment of Authenticating Agent..............................................55
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..............................................57
Section 701. Company to Furnish Trustee Names and Addresses of Holders........................57
Section 702. Preservation of Information; Communications to Holders...........................57
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Section 703. Reports By Trustee...............................................................57
Section 704. Reports By Company...............................................................58
ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES................................................................59
Section 801. Company May Consolidate Etc., Only on Certain Terms..............................59
Section 802. Successor Corporation Substituted For Company....................................59
ARTICLE NINE SUPPLEMENTAL INDENTURES.........................................................................60
Section 901. Supplemental Indentures Without Consent of Holders...............................60
Section 902. Supplemental Indentures With Consent of Holders..................................61
Section 903. Execution of Supplemental Indentures.............................................62
Section 904. Effect of Supplemental Indentures................................................62
Section 905. Conformity With Trust Indenture Act..............................................63
Section 906. Reference in Securities to Supplemental Indentures...............................63
ARTICLE TEN COVENANTS........................................................................................63
Section 1001. Payment of Principal, Premium, If Any, and Interest..............................63
Section 1002. Maintenance of Office or Agency..................................................63
Section 1003. Money For Securities Payments to Be Held in Trust................................64
Section 1004. Additional Amounts...............................................................66
Section 1005. Statement As To Compliance; Notice of Certain Defaults...........................66
Section 1006. Limitation Upon Sale or Issuance of Capital Stock of Certain Subsidiaries........67
Section 1007. Limitation on Liens..............................................................68
Section 1008. Limitation on Certain Acquisitions...............................................68
Section 1009. Payment of Taxes and Other Claims................................................69
Section 1010. Corporate Existence..............................................................69
Section 1011. Waiver of Certain Covenants......................................................69
Section 1012. Calculation of Original Issue Discount...........................................69
ARTICLE ELEVEN REDEMPTION OF SECURITIES......................................................................70
Section 1101. Applicability of Article.........................................................70
Section 1102. Election To Redeem; Notice To Trustee............................................70
Section 1103. Selection By Trustee of Securities To Be Redeemed................................70
Section 1104. Notice of Redemption.............................................................70
Section 1105. Deposit of Redemption Price......................................................72
Section 1106. Securities Payable on Redemption Date............................................72
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Section 1107. Securities Redeemed in Part......................................................73
Section 1108. Conversion Arrangements on Call for Redemption...................................73
ARTICLE TWELVE SINKING FUNDS.................................................................................74
Section 1201. Applicability of Article.........................................................74
Section 1202. Satisfaction of Sinking Fund Payments With Securities............................74
Section 1203. Redemption of Securities For Sinking Fund........................................75
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS..........................................................75
Section 1301. Applicability of Article.........................................................75
ARTICLE FOURTEEN MEETINGS OF HOLDERS.........................................................................76
Section 1401. Purposes For Which Meetings May Be Called........................................76
Section 1402. Call, Notice and Place of Meetings...............................................76
Section 1403. Persons Entitled To Vote At Meetings.............................................76
Section 1404. Quorum; Action...................................................................76
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings..............77
Section 1406. Counting Votes and Recording Action of Meetings..................................78
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS.....................................................................79
Section 1501. Securities in Foreign Currencies.................................................79
Section 1502. Manner of Exercise of Convertible Privilege......................................79
Section 1503. Cash Adjustment Upon Conversion..................................................80
Section 1504. Conversion Price.................................................................80
Section 1505. Adjustment of Conversion Price...................................................80
Section 1506. Effect of Reclassifications, Consolidations, Mergers or Sales
on Conversion Privilege..........................................................83
Section 1507. Taxes on Conversion..............................................................84
Section 1508. Company to Reserve Common Stock..................................................84
Section 1509. Disclaimer by Trustee of Responsibility for Certain Matters......................84
Section 1510. Company to Give Notice of Certain Events.........................................85
ARTICLE SIXTEEN MISCELLANEOUS PROVISIONS.....................................................................86
Section 1601. Securities in Foreign Countries..................................................86
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NATIONAL CITY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, AS AMENDED,
AND SENIOR INDENTURE, DATED AS OF ____________, 2003.
Trust Indenture Act Section Indenture Section
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Section 310 (a) (1).................................................... 607
(a) (2)................................................. 607
(a) (5)................................................. 607
(b)..................................................... 607
Section 311 (a)........................................................ 604
(b)..................................................... 604
(b) (2)................................................. 108
Section 312 (a)........................................................ 701, 702 (a)
(b)..................................................... 702 (a)
(c)..................................................... 702 (b)
Section 313 (a)........................................................ 703 (a), 703 (b)
(b)(2).................................................. 108
(c)..................................................... 703 (c)
(d)..................................................... 703 (c)
Section 314 (a)........................................................ 704
(c) (1)................................................. 102
(c) (2)................................................. 102
(c) (3)................................................. 108
(e)..................................................... 102
Section 315 (a)........................................................ 108
(b)..................................................... 601
(c)..................................................... 108
(d)..................................................... 108
(d) (1)................................................. 108
(d) (2)................................................. 108
(d) (3)................................................. 108
(e)..................................................... 108
Section 316 (a)........................................................ 104
(a) (1) (A)............................................. 512
(a) (1) (B)............................................. 513
(b)..................................................... 508
(c)..................................................... 104
Section 317 (a) (1).................................................... 505
(a) (2)................................................. 504
(b)..................................................... 1003
Section 318 (a)........................................................ 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Senior Indenture.
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SENIOR 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 and
unsubordinated debentures, notes or other evidences of indebtedness (the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof or
Coupons appertaining to any Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting
9
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 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;
and 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 and (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 a
10
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 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.
"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
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original execution of this Indenture is 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 shall also include 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
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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, as amended, and the rules and regulations
promulgated by the Commission thereunder who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to the
Indenture or certificates required to be provided hereunder.
"Interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity and, with respect to any Security which provides for the payment of
Additional Amounts pursuant to Section 1004, includes such Additional Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Legal Holiday", except as otherwise may be provided herein or in any
Securities, with respect to any Place of Payment or other location, means a
Saturday, a Sunday or a day on which banking institutions or trust companies in
such Place of Payment or other location are not authorized or obligated to be
open.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a 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:
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(i) Securities theretofore cancelled 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;
(iii) Securities, except to the extent provided in Section 403, with
respect to which the Company has effected defeasance and/or covenant
defeasance pursuant to Section 403 hereof; and
(iv) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes and for purposes of
making the calculations required by Section 313 of the Trust Indenture Act, (i)
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 (ii) 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 (iii) 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.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Security or Coupon on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place Of Payment", with respect to any Security, means the place or places
where the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in or pursuant to Section 301(9) or Section
1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
lost, destroyed, mutilated or stolen Security or any Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.
"Principal Constituent Bank" means any Constituent Bank the consolidated
assets of which as set forth in the most recent statement of condition of such
Bank constitute 15% or more of the Company's consolidated assets as determined
from the most recent statements of condition 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
15
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.
"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 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, as
amended, 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
16
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 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
17
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 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,
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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 such 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 (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
19
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
(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
20
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 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.
21
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.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security, or the last day on which a Holder has the right to
convert these 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, on the last such day of 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
22
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
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.
23
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 (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) 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 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 of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1107 or 1502 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, (i) 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, (ii) the
name of the depository or the U.S. Depository, as the case may be,
with respect to any global Security and (iii) the manner in which
interest payable on a global Security will be paid;
24
(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 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;
25
(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 of any of them which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the method by which such portion is
to be determined;
(14) if other than such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public or
private debts, the coin or 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 coin or 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
26
them, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(19) the applicability, if any, of Section 403 to the Securities of the
series and any provisions in modification of, in addition to or in
lieu of any of the provisions of Section 403;
(20) if the Securities of the series or any of them are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(21) 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;
(22) 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;
(23) whether any of the Securities of a series shall be issued as Original
Issue Discount Securities; and
(24) 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.
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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, Deputy Chairman, one of its
Vice Chairmen, its President or one of its Vice Presidents under its corporate
seal reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and any
Coupons appertaining thereto may be manual or facsimile.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
Coupons appertaining thereto, executed by the Company, to the Trustee for
authentication, and, provided that the Board Resolution or Resolutions and
Officers' Certificate or supplemental indenture or indentures with respect to
such Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities, has been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(b) of the Trust Indenture Act) shall be
fully protected in relying upon,
(1) an Opinion of Counsel stating, to the effect
(a) that the form or forms and terms of such Securities and Coupons,
if any, have been established in conformity with the provisions
of this Indenture;
(b) that all conditions precedent to the authentication and delivery
of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities, and Coupons,
when completed by appropriate insertion and executed and
delivered by the Company to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by
the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the
enforcement of creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and will entitle
the Holders thereof to the benefits of the Indenture; such
Opinion of Counsel need express no opinion as to the availability
of equitable remedies;
28
(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
(2) an Officers' Certificate stating that, to the best knowledge of the
Persons executing such certificate, no Event of Default with respect
to any of the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the 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 cancelled.
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.
29
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities of
any series are issued, the Company shall cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of any series, the temporary Securities of such series, if
any, shall be exchangeable upon request for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an office or agency of the Company maintained for
such purpose pursuant to Section 1002, without charge to any Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations of
the same series containing identical terms and provisions; PROVIDED, HOWEVER,
that no definitive Bearer Security, except as provided pursuant to Section 301,
shall be delivered in exchange for a temporary Registered Security; and
PROVIDED, FURTHER, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth herein or therein. Unless otherwise specified as contemplated by
Section 301 with respect 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 such 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.
30
If specified as contemplated by Section 301 with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms
and provisions, of any authorized denominations and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any such office or
agency for such series, with all unmatured Coupons and all matured Coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to them such Security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing Coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 1002, interest represented by Coupons shall be 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 (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (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 (i) 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 90
days of the date the Company is so notified in writing, (ii) the Company
executes and delivers to the Trustee a Company Order to the effect that such
global Security shall be so exchangeable, or
31
(iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for Securities of such series and of like
tenor and principal amount of any authorized form and denomination, as specified
as contemplated by Section 301, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or 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
such 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; PROVIDED, HOWEVER, that 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; and provided, further, that (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 (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security is
payable in accordance with the provisions of this Indenture.
All Securities endorsed thereon issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company evidencing
the same debt, and entitling the Holders thereof to the same benefits under this
Indenture as the Securities surrendered upon such registration of transfer or
exchange.
32
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 or
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 (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business 15
days before the day of 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 (ii) 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
(iii) 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 (iv)
to issue, register the transfer of or exchange any Security which, in accordance
with its terms specified as contemplated by Section 301, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) 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,
33
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; PROVIDED, HOWEVER, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its Coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security and its
Coupons, if any, or the destroyed, lost or stolen Coupon shall constitute a
separate obligation of the Company, whether or not the destroyed, lost or stolen
Security and its Coupons, if any, or the destroyed, lost or stolen Coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their Coupons, if any.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered as of the close
of business on the Regular Record Date for such interest. In case a Bearer
Security of any series is surrendered in exchange for a Registered Security of
such series after the close of business (at an office or agency in a Place of
Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the Coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange of such
Bearer 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
34
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, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment. Money will be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon, the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of such Registered Securities at his address as it appears
in the Security Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names
such Registered Securities (or their respective Predecessor
Securities) are registered 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
35
proposed payment pursuant to this Clause, 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, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or 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, and
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
cancelled 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, and all Securities
so delivered shall be promptly cancelled 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 cancelled as provided in this Section, except
as expressly permitted by this Indenture or as otherwise specified as
contemplated by Section 301. All cancelled 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 cancelled Securities.
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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 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly provided for
and any right to receive Additional Amounts, as provided in Section 1004), and
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
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(B) all Securities of such series and, in the case of (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 and such Securities are not convertible into other
Securities, or
(iii) if redeemable at the option of the Company, such Securities
are not convertible into other Securities and are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose, lawful money of the United States 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 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.
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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, of the principal (and
premium, if any) and any interest or any Additional Amounts for whose payment
such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
All monies 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.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
If pursuant to Section 301 provision is made for defeasance of Securities
of any series pursuant to Section 403, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such series and any
Coupons appertaining thereto,
(i) the Company has deposited or caused to be deposited with the
Trustee, as trust funds in trust for such purpose, an amount
sufficient to pay and discharge the entire indebtedness on
all Outstanding Securities of such series for principal (and
premium, if any), any Additional Amounts, and interest to
the Stated Maturity or any Redemption Date as contemplated
by the penultimate paragraph of this Section 403, as the
case may be; or
(ii) with respect to any Series of Securities which are
denominated in United States dollars, the Company has
deposited or caused to be deposited with the Trustee, as
obligations in trust for such purpose, such amount of direct
obligations of, or obligations the timely payment of the
principal of and interest on which are fully guaranteed by,
the United States of America and which are not callable at
the option of the issuer thereof as will, together with the
income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay and discharge the
entire indebtedness on all Outstanding Securities of such
series for principal (and premium, if any), any Additional
Amounts, and interest to the stated Maturity or any
Redemption Date as contemplated by the penultimate paragraph
of this Section 403; or
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(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such series;
and
(2) the Company has paid or caused to be paid all other sums payable
hereunder with respect to the Outstanding Securities of such series;
and
(3) the Company has delivered to the Trustee a certificate signed by a
nationally recognized firm of Independent Public Accountants
certifying as to the sufficiency of the amounts deposited pursuant to
subsections (A) (i) or (ii) of this Section for payment of the
principal (and premium, if any) and interest on the dates such
payments are due, an Officers' Certificate and an Opinion of Counsel,
each such Certificate and opinion stating that no Event of Default or
event which with notice or lapse of time or both would become an Event
of Default with respect to such Securities shall have occurred and all
conditions precedent herein provided for relating to the satisfaction
and discharge of the entire indebtedness on all Outstanding Securities
of any such series have been complied with; and
(4) the Company has delivered to the Trustee
(A) a ruling from the Internal Revenue Service or an opinion of
independent counsel that the holders of the Securities of such
series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had
not occurred; and
(B) if the Securities of such series are then listed on the New York
Stock Exchange, an Opinion of Counsel that the Securities of such
series will not be delisted as a result of the exercise of this
option.
Any deposits with the Trustee referred to in subsection (1) (A) of this
Section shall be irrevocable and shall be made under the terms of an escrow
trust agreement in form and substance satisfactory to the Trustee. If any
Outstanding Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption or repayment provisions or
in accordance with any mandatory sinking fund requirement, the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Upon the satisfaction of the conditions set forth in this Section 403 with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, other than the provisions of Sections 305,
306, and 1002, other than the right of Holders of Securities and any Coupons of
such series to receive, from the trust fund described in this Section, payment
of the principal (and premium, if any) of, the interest on or any Additional
Amounts with respect to such Securities and Coupons (if any) appertaining
thereto when such payments are due, other than any right of
40
conversion of such Securities and the rights, powers, duties and immunities of
the Trustee hereunder, shall no longer be binding upon, or applicable to, the
Company except those responsibilities and obligations which by the terms of the
Indenture survive the termination of the Indenture; PROVIDED that the Company
shall not be discharged from any payment obligations in respect of Securities of
such series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
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) default in the payment of any interest upon or any Additional Amounts
payable in respect of any Security of such series when such interest
becomes or Additional Amounts become due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (and premium, if any, on)
any Security of that series when it becomes due and payable at
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or the Securities (other than a covenant
or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a
series of Securities other than such series), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Company or any Principal
Constituent Bank for money borrowed, whether such indebtedness now
exists or shall hereafter be created, shall happen and shall result in
such indebtedness in principal amount in excess of $25,000,000
becoming or being declared due and payable prior to the date on
41
which it would otherwise become due and payable, and such acceleration
shall not be rescinded or annulled, or such indebtedness shall not
have been discharged, within a period of 30 days after there shall
have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the outstanding Securities of such
series, a written notice specifying such event of default and
requiring the Company to cause such acceleration to be rescinded or
annulled or to cause such indebtedness to be discharged and stating
that such notice is a "Notice of Default" hereunder; or
(6) 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
(7) 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; or
(8) any other Event of Default provided with respect to Securities of such
series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time
outstanding occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal of all the Securities of that series, or such lesser
amount as may be provided for in the Securities of that series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article 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
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(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, other
than the non-payment of the principal of Securities of that series
which has become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest on or
any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and any Coupons appertaining thereto, the whole
amount then due and payable on such Securities and Coupons 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, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
43
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If 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
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;
and 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 and,
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,
44
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 and
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 and,
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.
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
45
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered indemnity reasonably satisfactory
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, and such right shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of a Security or Coupon is intended to be exclusive of
any other right or remedy, and every right and remedy, to the extent permitted
by law, shall be cumulative and in addition to every other right and remedy
46
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
or by law to the Trustee or to the Holders of Securities or Coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or Coupons, 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.
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 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 Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
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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; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 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; PROVIDED, HOWEVER, that, 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; and PROVIDED further, that in
the case of default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default, with respect to Securities of such
series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Sections 315(a) through 315(d) of the Trust
Indenture Act:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, or other paper or document reasonably believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (other
than delivery of any Security, together with any Coupons appertaining
thereto to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently
48
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 to the Company and
shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered,
omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and
this Indenture; and
(10) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be
indemnified, are extended to, and
49
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,
except that 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-l 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.
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.
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SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as shall be mutually agreed upon by
the Company and the Trustee in writing (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee and its
agents for, and to hold them harmless against, any loss, liability or
expense including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) incurred without negligence
or bad faith on their part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
As Security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on Securities. When the Trustee incurs expenses or renders services
after an Event of Default occurs, the expenses and compensation for the services
of the Trustee are intended to constitute expenses of administration under any
bankruptcy law or any similar federal or state law for the relief of debtors.
The provisions of this Section 606 shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS.
There shall at all times be a Trustee hereunder that is a corporation
permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to act as
trustee under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the 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)
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SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(b) 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.
(c) 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.
(d) If at any time:
(1) 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
(2) 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
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case,
(4) the Company, by or pursuant to Board Resolution, may remove the
Trustee with respect to all Securities, or
(5) subject to Section 315(c) 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.
52
(e) 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 Board
Resolutions, 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.
(f) 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 and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) 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; but, 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.
(b) 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
53
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 (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all 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 (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture other than as hereinafter expressly set forth, and each such successor
Trustee without any further act, deed or conveyance, shall become vested with
all the rights, powers, 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.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
54
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Authenticating Agents,
which may be an Affiliate of the Company, with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of that or those series issued upon original issue or
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. 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 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, is authorized under applicable law and by its charter to act as
such and that has 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 action as is required pursuant
to said Section 310 (b).
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and 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 and shall (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
55
appointment at least once in an Authorized Newspaper in the place where such
successor Authenticating Agent has its principal office if such office is
located outside the United States. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
As Trustee
By:________________________
As Authenticating Agent
By:________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not comply
with Section 102) by the Company, shall appoint in accordance with this Section
an Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular
Record Date, or if there is no Regular Record Date for interest for
such series of Securities, semi-annually, upon such dates as are set
forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
(b) 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.
(a) Within 60 days after April 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 April 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 May 15 and
the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(a) of
the Trust Indenture Act at the times specified therein.
57
(c) Reports pursuant to this Section shall be transmitted in the manner and
to the Persons required by Sections 313(c) and (d) of the Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is
not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
Security listed and registered on a national Securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with respect to compliance by such obligor
with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(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 of 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).
58
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); PROVIDED,
however, that:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time
there is more than one Trustee) supplemental hereto, executed and
delivered by the successor Person to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on or any Additional Amounts in respect
of all the Securities and the performance of every other covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event (including, without limitation, default
under Section 1006) which, after notice or lapse of time or both,
would become an Event of 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 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
59
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the Company,
when authorized by Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal (or premium,
if any) on Registered Securities or of principal (or premium, if any)
or any interest on Bearer Securities, to permit Registered Securities
to be exchanged for Bearer Securities or to permit or facilitate the
issuance of Securities in uncertified form, PROVIDED any such action
shall not adversely affect the interests of the Holders of Securities
of any series or any Coupons appertaining thereto in any material
respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301; or
(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 (b); 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
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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;
(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 Persons hereunder pursuant to the Trust Indenture Act
or under any similar federal statute hereafter enacted and 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 1506;
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; PROVIDED, HOWEVER,
that no such supplemental Indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof,
or 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)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change the Place of Payment, coin or currency in which
any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
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(2) 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, or
(3) modify any of the provisions of this section, or Sections 512, 513 or
Section 1011, 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.
The Company may, but shall not be obligated to, fix a record date for the
purposes 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
cancelled 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 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 and
that it complies with the terms of this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupons appertaining thereto shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new 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.
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) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. 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); PROVIDED, HOWEVER, that 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 will maintain a Paying Agent in London, Luxembourg
or any other required city located outside the United
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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 Amounts payable on Bearer Securities of
that series pursuant to Section 1004) at the place specified for the purpose
pursuant to Section 301, and 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; PROVIDED, 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; PROVIDED, HOWEVER, that 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 City of
Cleveland, Ohio, and initially appoints the office or agency of the Company for
such purpose. 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
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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.
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; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
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; and the Holder of such Security or
any Coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment 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
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any) or interest has become due and payable, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security of any
such series or any Coupon 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 related Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
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 premium, if any, is
made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the 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 and 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.
(a) 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, 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
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(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision,
and
(2) to the best of his knowledge, based on such review, (a) the Company
has fulfilled all of its obligations 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 (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, 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.
(b) 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. LIMITATION UPON SALE OR ISSUANCE OF CAPITAL STOCK OF CERTAIN
SUBSIDIARIES.
Except as set forth below, the Company will not sell, assign, pledge,
transfer or otherwise dispose of, or permit the issuance of, or permit a
Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of
Capital Stock of any Subsidiary or any Securities convertible into Capital Stock
of any Subsidiary which is:
(1) a Principal Constituent Bank; or
(2) a Subsidiary which owns shares of Capital Stock or any Securities
convertible into Capital Stock of a Principal Constituent Bank;
provided, however, nothing in this Section shall prohibit (i) any dispositions
made by the Company or any Subsidiary (A) acting in a fiduciary capacity for any
person other than the Company or any Subsidiary or (B) to the Company or any of
its wholly-owned Subsidiaries or (ii) the merger or consolidation of a Principal
Constituent Bank with and into a Constituent Bank or the merger or consolidation
of any Principal Constituent Bank with and into any other Principal Constituent
Bank.
Notwithstanding the foregoing, sales, assignments, pledges, transfers,
issuances or other dispositions of shares of Capital Stock of a corporation
referred to in Clause (a) or (b) above may be made where:
(1) the sales, assignments, pledges, transfers, issuances or other
dispositions are made, in the minimum amount required by law, to any
Person for the purpose of the qualification of such Person to serve as
a director; or
(2) the sales, assignments, pledges, transfers, issuances or other
dispositions are made in compliance with an order of a court or
regulatory authority of competent jurisdiction or as a condition
imposed by any such court or authority to the acquisition by the
Company, directly or indirectly, of any other corporation or entity;
or
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(3) in the case of a disposition or issuance of shares of Capital Stock or
any Securities convertible into Capital Stock of a Principal
Constituent Bank, or sales of Capital Stock or any Securities
convertible into Capital Stock of any Subsidiary included in Clause
(b) above, the sales, assignments, pledges, transfers, issuances or
other dispositions are for fair market value (as determined by the
Board of Directors of the Company and the Subsidiary disposing of such
shares or Securities, such determination being evidenced by a Board
Resolution) and, after giving effect to such disposition and to any
potential dilution (if the shares or Securities are convertible into
Capital Stock), the Company and its wholly-owned (except for
directors' qualifying shares) Subsidiaries, will own directly not less
than 80% of the Voting Stock of such Principal Constituent Bank or
Subsidiary; or
(4) a Principal Constituent Bank sells additional shares of Capital Stock
to its stockholders at any price, so long as immediately after such
sale the Company owns, directly or indirectly, at least as great a
percentage of the Voting Stock of such Principal Constituent Bank as
it owned prior to such sale of additional shares.
SECTION 1007. LIMITATION ON LIENS.
The Company will not pledge, mortgage or hypothecate, or permit to exist
any pledge, mortgage or hypothecation or other lien upon, any shares of Capital
Stock of a Constituent Bank to secure any indebtedness for borrowed money
without making effective provisions whereby the Securities shall be equally and
ratably secured with any and all such indebtedness.
In case the Company shall propose to pledge, mortgage, or hypothecate any
such shares of Capital Stock at any time owned by it to secure any indebtedness,
the Company will prior thereto give written notice thereof to the Trustee and
will prior to or simultaneously with such pledge, mortgage or hypothecation, by
supplemental indenture delivered to the Trustee, in form satisfactory to it,
effectively secure all the Securities equally and ratably with such
indebtedness, by pledge, mortgage or hypothecation of such shares of Capital
Stock. Such supplemental indenture shall contain the provisions concerning the
possession, control, release and substitution of mortgaged and pledged property
and Securities and other appropriate matters which are required or are permitted
by the Trust Indenture Act (as in effect at the date of execution of such
supplemental indenture) to be included in a secured indenture qualified under
said Trust Indenture Act, and may also contain such additional and amendatory
provisions permitted by said Trust Indenture Act as the Company and the Trustee
shall deem advisable or appropriate or as the Trustee shall deem necessary in
connection with such pledge, mortgage or hypothecation.
SECTION 1008. LIMITATION ON CERTAIN ACQUISITIONS.
The Company will not (a) acquire Capital Stock of any corporation or (b)
acquire substantially all the assets and liabilities of any corporation, if,
immediately upon giving effect to such acquisition, the Company would not then
be in full compliance with all the terms, conditions and covenants contained in
this Indenture.
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SECTION 1009. 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; PROVIDED, HOWEVER, that 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 1010. 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; PROVIDED, HOWEVER, that 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.
SECTION 1011. 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, 1007, 1008 and 1009 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 1012. 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.
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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.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
Board Resolution. In case of any redemption at the election of the Company of
the Securities of any series, with the same issue date, interest rate and Stated
Maturity, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue date,
interest rate, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Registered Securities of such
series; PROVIDED, HOWEVER, that 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.
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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) 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,
(4) 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,
(5) 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,
(6) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed only, as to Bearer
Securities, against tender of such Security and any Coupons
appertaining thereto, and, if applicable, that interest thereon and
Additional Amounts, if any, shall cease to accrue on and after said
date,
(7) the place or places where such Securities, together, in the case of
Bearer Securities with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price,
(8) that the redemption is for a sinking fund, if such is the case, and
(9) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
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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.
If any Convertible Security or portion thereof called for redemption is
converted pursuant to Article Fifteen, 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; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002), and PROVIDED,
FURTHER, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such 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
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deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest (or
any Additional Amounts) represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside of the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and 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
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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
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 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,
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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, PROVIDED,
HOWEVER, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of 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, and
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
cancelled. 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.
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
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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 that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman 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 chairman. A
permanent chairman 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; PROVIDED, HOWEVER, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman 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 chairman 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 chairman 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
CONVERSION
SECTION 1501. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article Fifteen
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 1502. 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 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 Fifteen, 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
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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 1503. 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 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 1504. 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 Fifteen.
SECTION 1505. 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)
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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 1505, 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 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 1505. 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
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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 1505. 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
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 1503 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.
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(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 Fifteen 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.
SECTION 1506. 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 1506 and providing further for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
Fifteen; 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
83
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 1506 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
SECTION 1507. 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 1508. COMPANY TO RESERVE COMMON STOCK.
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 1509. 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
84
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 1510. 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
(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.
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ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. 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 , and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] NATIONAL CITY CORPORATION
Attest: By:____________________________
Name:
Title:
[SEAL] THE BANK OF NEW YORK, TRUSTEE
Attest: By:____________________________
Name:
Title:
87
STATE OF OHIO )
) SS. :
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.
-------------------------------
Notary Public
[NOTARIAL SEAL]
00
XXXXX XX XXX XXXX )
) SS.
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 an [ ] 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.
-------------------------------
Notary Public
[NOTARIAL SEAL]
89
