EXHIBIT 4(d)
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FIRST CHICAGO NBD CORPORATION
AND
THE CHASE MANHATTAN BANK
TRUSTEE
----------------
Indenture
Dated as of January 1, 1997
----------------
JUNIOR SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS*
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
PAGE
SECTION 1.01. Definitions.................................... 1
"this Indenture" and certain other terms....... 1
"Act".......................................... 2
"Affiliate".................................... 2
"Authenticating Agent"......................... 2
"Authorized Newspaper"......................... 2
"Authorized Officer"........................... 2
"Bank"......................................... 2
"Bearer Security".............................. 2
"Board of Directors"........................... 2
"Board Resolution"............................. 2
"Business Day"................................. 2
"CEDEL" or "CEDEL S.A."........................ 2
"Code"......................................... 2
"Commission"................................... 2
"Common Securities"............................ 2
"Common Securities Guarantee".................. 3
"Common Stock"................................. 3
"Common Depositary"............................ 3
"Company"...................................... 3
"Company Request" and "Company Order".......... 3
"corporation".................................. 3
"Co-Security Register"......................... 3
"coupon"....................................... 3
"Declaration".................................. 3
"Defaulted Interest"........................... 3
"Depositary"................................... 3
"Designated Currency".......................... 3
"Dollar" or "$"................................ 3
"ECU".......................................... 3
"Euroclear".................................... 3
"European Communities"......................... 3
"Event of Default"............................. 3
"Exchange Rate"................................ 4
"Exchange Rate Agent".......................... 4
"Exchange Rate Officer's Certificate".......... 4
"Existing Subordinated Indebtedness"........... 4
"Expense Beneficiaries"........................ 4
"Expense Obligation"........................... 4
"Extension Period"............................. 4
"FCN Capital Trust"............................ 4
"FCN Guarantee"................................ 4
"Federal Reserve".............................. 4
"Financing Entity"............................. 4
"Foreign Currency"............................. 4
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*This table of Contents is not part of the Indenture.
ii
PAGE
"General Obligations".......................... 4
"Global Exchange Date"......................... 5
"Global Security".............................. 5
"Holder"....................................... 5
"Institutional Trustee"........................ 5
"interest"..................................... 5
"Interest Payment Date"........................ 5
"Maturity"..................................... 5
"Officers' Certificate"........................ 5
"Opinion of Counsel"........................... 5
"Original Issue Discount Security"............. 5
"Outstanding".................................. 5
"Paying Agent"................................. 6
"Payment Date"................................. 6
"Person"....................................... 6
"Place of Payment"............................. 6
"Predecessor Security"......................... 6
"Preferred Securities"......................... 6
"Preferred Securities Guarantee"............... 6
"Principal Corporate Trust Office"............. 6
"Principal Paying Agent"....................... 6
"Proceeding"................................... 6
"Redemption Date".............................. 6
"Redemption Price"............................. 6
"Registered Security".......................... 7
"Regular Record Date".......................... 7
"Remarketing Entity"........................... 7
"Repayment Date"............................... 7
"Repayment Price".............................. 7
"Responsible Officer".......................... 7
"Rights Plan".................................. 7
"Security" or "Securities"..................... 7
"Security Register"............................ 7
"Security Registrar"........................... 7
"Senior Indebtedness".......................... 7
"Series A Declaration"......................... 8
"Series B Declaration"......................... 8
"Series A Guarantee"........................... 8
"Series B Guarantee"........................... 8
"Special Record Date".......................... 8
"Stated Maturity".............................. 8
"Subsidiary of the Company" or "Subsidiary".... 8
"Trustee"...................................... 8
"Trust Indenture Act" or "TIA"................. 8
"Trust Securities"............................. 8
"United States"................................ 8
"United States Alien".......................... 8
"Vice President"............................... 8
SECTION 1.02. Compliance Certificates and Opinions........... 9
SECTION 1.03.
Form of Documents Delivered to Trustee......... 9
iii
PAGE
SECTION 1.04. Acts of Holders................................ 9
SECTION 1.05. Notices, etc., to Trustee and Company.......... 11
SECTION 1.06. Notices to Holders; Waiver..................... 12
SECTION 1.07. Language of Notices, Etc....................... 12
SECTION 1.08. Conflict with Trust Indenture Act.............. 12
SECTION 1.09. Effect of Headings and Table of Contents....... 12
SECTION 1.10. Successors and Assigns......................... 13
SECTION 1.11. Separability Clause............................ 13
SECTION 1.12. Benefits of Indenture.......................... 13
SECTION 1.13. Legal Holidays................................. 13
SECTION 1.14. Governing Law.................................. 13
ARTICLE TWO
SECURITY FORMS
SECTION 2.01.
Forms Generally................................ 13
SECTION 2.02. Form of Securities............................. 14
SECTION 2.03. Form of Trustee's Certificate of Authentica- 14
SECTION 2.04. tion...........................................
Global Securities.............................. 14
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms................................ 15
SECTION 3.02. Denominations.................................. 17
SECTION 3.03. Execution, Authentication, Delivery and Dat- 17
SECTION 3.04. ing............................................
Temporary Securities........................... 19
SECTION 3.05. Registration, Registration of Transfer and Ex- 21
change.........................................
SECTION 3.06.
Mutilated, Destroyed, Lost and Stolen Securi- 23
SECTION 3.07. ties...........................................
Payment of Interest; Interest Rights Pre- 24
SECTION 3.08. served.........................................
Persons Deemed Owners.......................... 25
SECTION 3.09. Cancellation................................... 26
SECTION 3.10. Computation of Interest........................ 26
SECTION 3.11. Forms of Certification......................... 26
SECTION 3.12. Judgments...................................... 26
SECTION 3.13. Deferrals of Interest Payment Dates............ 27
SECTION 3.14.
Right of Set-off............................... 28
SECTION 3.15. Agreed Tax Treatment........................... 28
SECTION 3.16. CUSIP Numbers.................................. 28
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01.
Applicability of Article....................... 28
iv
PAGE
SECTION 4.02. Election to Redeem; Notice to Trustee.......... 28
SECTION 4.03. Selection by Security Registrar of Securities 29
SECTION 4.04. to be Redeemed................................
Notice of Redemption........................... 29
SECTION 4.05. Deposit of Redemption Price.................... 30
SECTION 4.06. Securities Payable on Redemption Date.......... 30
SECTION 4.07. Securities Redeemed in Part.................... 30
SECTION 4.08. Redemption Suspended During Event of Default... 30
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest..... 31
SECTION 5.02.
Maintenance of Office or Agency................ 31
SECTION 5.03. Money for Security Payments to Be Held in 32
SECTION 5.04. Trust..........................................
Additional Sums................................ 33
SECTION 5.05. Statement as to Compliance..................... 34
SECTION 5.06. Maintenance of Corporate Existence, Rights and 34
SECTION 5.07. Franchises....................................
Additional Covenants........................... 34
SECTION 5.08. Original Issue Discount........................ 35
ARTICLE SIX
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses 35
of Holders....................................
SECTION 6.02.
Preservation of Information; Communications to 35
SECTION 6.03. Holders........................................
Reports by Trustee............................. 36
SECTION 6.04. Reports by Company............................. 37
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default.............................. 37
SECTION 7.02. Acceleration of Maturity; Rescission and An- 38
SECTION 7.03. nulment........................................
Collection of Indebtedness and Suits for 39
SECTION 7.04. Enforcement by Trustee........................
Trustee May File Proofs of Claim............... 39
SECTION 7.05. Trustee May Enforce Claims Without Possession 40
SECTION 7.06. of Securities.................................
Application of Money Collected................. 40
SECTION 7.07.
Limitation on Suits............................ 40
SECTION 7.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct
Action by Holders of Preferred Securities.....
41
SECTION 7.09. Restoration of Rights and Remedies............. 41
v
PAGE
SECTION 7.10. Rights and Remedies Cumulative................. 41
SECTION 7.11. Delay or Omission Not Waiver................... 42
SECTION 7.12. Control by Noteholders......................... 42
SECTION 7.13. Waiver of Past Defaults........................ 42
SECTION 7.14. Undertaking for Costs.......................... 43
SECTION 7.15. Waiver of Stay or Extension Laws............... 43
ARTICLE EIGHT
THE TRUSTEE
Certain Duties and Responsibilities............ 43
SECTION 8.02.
SECTION 8.01.
Notice of Default.............................. 44
Certain Rights of Trustee...................... 44
SECTION 8.03.
SECTION 8.04.
Not Responsible for Recitals or Issuance of 45
Notes..........................................
May Hold Securities............................ 45
SECTION 8.05.
SECTION 8.06.
Money Held in Trust............................ 45
SECTION 8.07. Compensation and Reimbursement................. 45
SECTION 8.08. Disqualification; Conflicting Interests........ 46
SECTION 8.09. Corporate Trustee Required; Eligibility........ 46
SECTION 8.10. Resignation and Removal; Appointment of 46
SECTION 8.11. Successor.....................................
Acceptance of Appointment by Successor......... 48
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.............
48
SECTION 8.13.
Preferential Collection of Claims against 49
SECTION 8.14. Company.......................................
Appointment of Authenticating Agents........... 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Supplemental Indentures Without Consent of 50
SECTION 9.01. Holders.......................................
SECTION 9.02.
Supplemental Indentures With Consent of 51
Holders.......................................
Execution of Supplemental Indentures........... 52
SECTION 9.03.
SECTION 9.04.
Effect of Supplemental Indentures.............. 52
SECTION 9.05. Conformity with Trust Indenture Act............ 52
SECTION 9.06. Reference in Securities to Supplemental 52
Indentures....................................
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Company May Consolidate, etc., Only on Certain 52
SECTION 10.02. Terms.........................................
SECTION 10.01.
Successor Corporation Substituted.............. 53
vi
PAGE
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture........ 53
SECTION 11.02. Application of Trust Money..................... 54
SECTION 11.03. Reinstatement.................................. 54
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01.
Exemption from Individual Liability............ 55
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article....................... 55
SECTION 13.02. Satisfaction of Sinking Fund Payments with 55
SECTION 13.03. Securities....................................
Redemption of Securities for Sinking Fund...... 56
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01.
Securities Subordinate to Senior Indebtedness
and General Obligations.......................
56
SECTION 14.02. No Payment When Senior Indebtedness in
Default; Payment Over of Proceeds Upon
Dissolution, Etc. ............................
56
SECTION 14.03. Payment Permitted If No Default................ 57
SECTION 14.04. Subrogation to Rights of Holders of Senior
Indebtedness and Creditors in respect of
General Obligations...........................
58
SECTION 14.05. Provisions Solely to Define Relative Rights.... 58
SECTION 14.06. Trustee to Effectuate Subordination............ 58
SECTION 14.07.
No Waiver of Subordination Provisions.......... 59
SECTION 14.08. Notice to Trustee.............................. 59
SECTION 14.09. Reliance on Judicial Order or Certificate of 60
SECTION 14.10. Liquidating Agent.............................
Trustee Not Fiduciary for Holders of Senior
Indebtedness or Creditors in respect of
General Obligations...........................
60
SECTION 14.11. Rights of Trustee as Holder of Senior
Indebtedness or Creditor in respect of
General Obligations; Preservation of
Trustee's Rights..............................
60
SECTION 14.12. Article Applying to Paying Agents.............. 60
vii
PAGE
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article....................... 60
SECTION 15.02. Repayment of Securities........................ 60
SECTION 15.03. Exercise of Option; Notice..................... 61
SECTION 15.04. Election of Repayment by Remarketing Entities.. 61
SECTION 15.05. Securities Payable on the Repayment Date....... 62
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01.
Purposes for Which Meetings May Be Called...... 62
SECTION 16.02. Call, Notice and Place of Meetings............. 62
SECTION 16.03. Persons Entitled to Vote at Meetings........... 62
SECTION 16.04. Quorum; Action................................. 63
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.......................
63
SECTION 16.06. Counting Votes and Recording Action of 64
Meetings......................................
ARTICLE SEVENTEEN
EXPENSES
SECTION 17.01.
Payment of Expenses by the Company............. 64
SECTION 17.02. Term of Agreement.............................. 65
SECTION 17.03. Waiver of Notice............................... 65
SECTION 17.04. No Impairment.................................. 65
SECTION 17.05. Enforcement.................................... 65
SECTION 17.06. Subrogation.................................... 65
SECTION 17.07. Amendment...................................... 65
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PAGE
ARTICLE EIGHTEEN
MISCELLANEOUS
SECTION 18.01. Counterparts................................... 66
SECTION 18.02. Acknowledgment of Rights....................... 66
TESTIMONIUM.................................................. 67
SIGNATURES AND SEALS......................................... 67
ACKNOWLEDGMENTS.............................................. 67
EXHIBIT A. Form of Certificate to be Given by Person En-
titled to Receive Bearer Security
68
EXHIBIT B. Form of Certificate to be Given by Euroclear
and CEDEL S.A. in Connection with the Exchange
of a Portion of a Temporary Global Security
69
EXHIBIT C. Form of Certificate to be Given by Euroclear
and CEDEL S.A. to Obtain Interest Prior to an
Exchange Date
70
EXHIBIT D.
Form of Certificate to be Given by Beneficial
Owners to Obtain Interest Prior to an Exchange
Date
71
ix
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
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REFLECTED IN INDENTURE
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SECTION
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TIA
(S) 310(a)(1) ......................................... 8.09
(a)(2) .............................................. 8.09
(a)(3) .............................................. Not Applicable
(a)(4) .............................................. Not Applicable
(a)(5) .............................................. 8.09
(b) ................................................. 8.08
8.10
(c) ................................................. Not Applicable
(S) 311(a) ........................................... 8.13
(b) ................................................. 8.13
(S) 312(a) ............................................ 6.01
6.02(i)
(b) ................................................. 6.02(ii)
(c) ................................................. 6.02(iii)
(S) 313(a) ........................................... 6.03(i)
(b) ................................................. 6.03(ii)
(c) ................................................. 6.03(i), (ii) and (iii)
(d) ................................................. 6.03(iii)
(S) 314(a) ........................................... 6.04
5.05
(b) ................................................. Not Applicable
(c)(1) .............................................. 1.02
(c)(2) .............................................. 1.02
(c)(3) .............................................. Not Applicable
(d) ................................................. Not Applicable
(e) ................................................. 1.02
(f) ................................................. Not Applicable
(S) 315(a) ........................................... 8.01(i)
8.01(iii)
(b) ................................................. 8.02
(c) ................................................. 8.01(ii)
(d) ................................................. 8.01
(d)(1) .............................................. 8.01(i)
(d)(2) .............................................. 8.01(iii)(b)
(d)(3) .............................................. 8.01(iii)(c)
(e) ................................................. 7.14
(S) 316(a) ........................................... 1.01
(S) 316(a)(1)(A) ...................................... 7.02
7.12
(a)(1)(B) ........................................... 7.13
(a)(2) .............................................. Not Applicable
(b) ................................................. 7.08
(c) ................................................. 1.04(viii)
x
REFLECTED IN INDENTURE
----------------------
SECTION
-------
(S) 317(a)(1) .......................................... 7.03
(a)(2) ............................................... 7.04
(b) .................................................. 5.03
(S) 318(a) ............................................. 1.08
(c) .................................................. 1.08
xi
THIS INDENTURE is entered into as of January 1, 1997, between FIRST CHICAGO
NBD CORPORATION, a corporation organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and THE
CHASE MANHATTAN BANK, a New York banking corporation, as trustee (hereinafter
called the "Trustee"), having its principal corporate trust office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trustee
Administration Department.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to
be issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein; and
(v) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation.
1
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, the Chief Financial Officer, any Vice President,
the Treasurer, the Secretary, the Comptroller, any Assistant Comptroller, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Bank" means The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States of
America.
"Bearer Security" means any Security in the form established pursuant to
Section 2.02 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors, or officers of the Company to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a day
on which banking institutions in the City of Chicago and any Place of Payment
for the Securities are authorized or required by law or executive order to
remain closed or (iii) a day on which the Principal Corporate Trust Office of
the Trustee, or with respect to the Securities of a series initially issued to
an FCN Capital Trust, the principal office of the Institutional Trustee under
the related Declaration, is closed for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its successors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if any
time after the execution and delivery of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Securities" means the undivided beneficial interests in the assets
of an FCN Capital Trust which rank pari passu with Preferred Securities issued
by such FCN Capital Trust; provided, however, that upon the occurrence of an
Event of Default, the rights of holders of Common Securities to payment in
respect of
2
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Common Securities Guarantee" means any guarantee that the Company may enter
into that operates directly or indirectly for the benefit of holders of Common
Securities of an FCN Capital Trust.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company and includes the common
stock, $1 par value per share, of the Company as the same exists at the date
of this Indenture or as such stock may be constituted from time to time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until any successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Comptroller, an
Assistant Comptroller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"Co-Security Registrar" has the meaning specified in Section 3.05.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Declaration", with respect to an FCN Capital Trust, shall mean the Amended
and Restated Declaration of Trust of such FCN Capital Trust.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 3.01 until a successor Depositary shall
have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if
at any time there is more than one such Person, "Depositary" as used with
respect to the Securities of any such series shall mean the Depositary with
respect to the Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Seven.
3
"Exchange Rate" shall have the meaning specified as contemplated in Section
3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant
Treasurer of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.01, the Company's 9
7/8% Subordinated Notes Due July 1999, the Company's 9% Subordinated Notes Due
June 15, 1999, the Company's 9 7/8% Subordinated Notes Due August 15, 2000,
the Company's 11 1/4% Subordinated Notes Due February 20, 2001, the Company's
10 1/4% Subordinated Notes Due May 1, 2001, the Company's 9 1/4% Subordinated
Notes Due November 15, 2001, the Company's 8 7/8% Subordinated Notes Due March
15, 2002, the Company's 8 1/4% Subordinated Notes Due June 15, 2002, the
Company's 9 1/5% Subordinated Notes Due December 17, 2001, the Company's 7
5/8% Subordinated Notes Due January 15, 2003, the Company's 6 7/8%
Subordinated Notes Due June 15, 2003, the Company's Floating Rate Subordinated
Notes Due July 28, 2003, the Company's 6 3/8% Subordinated Notes Due January
30, 2009, the Company's 7.125% Subordinated Notes Due 2007, the Company's 7
1/4% Subordinated Debentures Due 2004, the Company's 8.10% Subordinated Notes
Due 2002, the Company's 7.40% Subordinated Debentures Due May 10, 2023, the
Company's Floating Rate Subordinated Notes Due 2005, the Company's 6 1/8%
Subordinated Notes Due February 15, 2006, the subordinated notes issued
pursuant to the Company's Medium-Term Note Program, Series G and any
securities issued pursuant to that certain Indenture dated as of December 1,
1995, between the Company and The Chase Manhattan Bank, as trustee.
"Expense Beneficiaries" has the meaning specified in Section 17.01.
"Expense Obligation" has the meaning specified in Section 17.01.
"Extension Period" has the meaning specified in Section 3.13.
"FCN Capital Trust" means each of First Chicago NBD Capital I, First Chicago
NBD Capital II, First Chicago NBD Capital III and First Chicago NBD Capital
IV, each a Delaware business trust, or any other similar trust created for the
purpose of issuing preferred securities in connection with the issuance of
Securities under this Indenture.
"FCN Guarantee" means any Common Securities Guarantee or Preferred
Securities Guarantee.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Financing Entity" means any trust, partnership or other entity affiliated
with the Company that is a financing vehicle of the Company and which issues
securities that rank pari passu with or junior to, Trust Securities,
including, but not limited to, First Chicago NBD Institutional Capital A and
First Chicago NBD Institutional Capital B, both statutory business trusts
created under the laws of the State of Delaware.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to any
series of Securities pursuant to Section 3.01, all obligations of the Company
to make payment on account of claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements, other than (i) obligations on account of Senior Indebtedness,
(ii) obligations on account of indebtedness for money borrowed ranking pari
passu with or subordinate to the Securities and (iii) obligations which by
their terms are expressly stated not to be superior in right of payment to the
Securities or to rank on a parity with the Securities; provided, however, that
notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or
4
other competent regulatory agency or authority), as from time to time in
effect, establishes or specifies criteria for the inclusion in regulatory
capital of subordinated debt of a bank holding company requiring that such
subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors (excluding trade accounts payable
arising in the ordinary course of business), as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4)
of the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04 (b)(iv).
"Global Security" means a Security issued to evidence all or a part of a
series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"Institutional Trustee" has the meaning set forth in the Declaration of the
applicable FCN Capital Trust.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any series of Securities,
means the Stated Maturity of an instalment of interest on such Securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security (or any instalment of principal) becomes due
and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice Chairman of the Board, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate shall
contain the statements set forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
5
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
whether a quorum is present at a meeting of Holders of Securities, the
principal amount of Original Issue Discount Securities that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02,
and Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Payment Date" has the meaning specified in Section 1.13.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 5.02,
the principal of (and premium, if any) and interest on the Securities of that
series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Preferred Securities" means the undivided beneficial interests in the
assets of an FCN Capital Trust which rank pari passu with Common Securities
issued by such FCN Capital Trust; provided, however, that upon the occurrence
of an Event of Default, the rights of holders of Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Company may
enter into with The Chase Manhattan Bank or other Persons that operate
directly or indirectly for the benefit of holders of Preferred Securities of
an FCN Capital Trust.
"Principal Corporate Trust Office" means the office of the Trustee, at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at
the address set forth in the first paragraph of this instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated as such
by the Company pursuant to Section 3.01 of this Indenture.
"Proceeding" has the meaning specified in Section 14.02.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in such Security at which it is to be redeemed
pursuant to this Indenture.
6
"Registered Security" means any Security in the form established pursuant to
Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as
the "Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Responsible Officer" means when used with respect to the Trustee, any
officer assigned to the Principal Corporate Trust Office, including any
managing director, vice president, assistant vice president, senior trust
officer, trust officer, assistant treasurer, assistant secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers, and also, with respect to a
particular matter, any other officer, to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
"Rights Plan" means a plan of the Company providing for the issuance by the
Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock or any other property, which rights (i) are deemed
to be transferred with such shares of Common Stock, (ii) are not exercisable
and (iii) are also issued in respect of future issuances of Common Stock, in
each case until the occurrence of a specified event or events.
"Security" or "Securities" means any Security or Securities, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on (i) all of the Company's indebtedness for money borrowed (but excluding
trade accounts payable arising in the ordinary course of business) whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness, except that Senior Indebtedness shall not include
(1) any such indebtedness that by its terms is subordinated to or ranks pari
passu with the Securities and (2) any indebtedness between or among the
Company or its affiliates including all other debt securities and guarantees
in respect of those debt securities issued to a Financing Entity or a trustee
of a Financing Entity, and (3) indebtedness evidenced by securities issued
under the indenture dated as of November 15, 1996 between the Company and The
Chase Manhattan Bank, as Trustee (unless such securities are by their terms
senior in right of payment to the securities heretofore issued under said
indenture). The term "indebtedness for money borrowed" as used in the
foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets and shall include Existing Subordinated Indebtedness.
7
"Series A Declaration" means that certain Amended and Restated Trust
Agreement relating to First Chicago NBD Institutional Capital A, dated as of
December 3, 1996, by and among, the Company, The Chase Manhattan Bank, as
property trustee, and Chase Manhattan Bank Delaware, as Delaware trustee.
"Series B Declaration" means that certain Amended and Restated Trust
Agreement relating to First Chicago NBD Institutional Capital B, dated as of
December 5, 1996, by and among, the Company, The Chase Manhattan Bank, as
property trustee, and Chase Manhattan Bank Delaware, as Delaware trustee.
"Series A Guarantee" means that certain Guarantee Agreement, dated as of
December 3, 1996, by and between the Company and The Chase Manhattan Bank, as
trustee.
"Series B Guarantee" means that certain Guarantee Agreement, dated as of
December 5, 1996, by and between the Company and The Chase Manhattan Bank, as
trustee.
"Special Record Date" for the payment of any Defaulted Interest means the
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security, or such
instalment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power
by reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"Trust Securities" means Common Securities and Preferred Securities of an FCN
Capital Trust.
"United States" means the United States of America (including the States and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
8
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the Officers' Certificate
required by Section 5.05) shall include:
(i) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(i) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders or
Holders of any series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If Securities of a series are issuable
in whole or in part as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may, alternatively, be embodied in and
evidenced by the record of Holders of Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities
9
duly called and held in accordance with the provisions of Article Sixteen, or
a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Security shall be sufficient for any purpose of
this Indenture and (subject to Section 8.01) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute proof of the authority of
the Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the Security
Register.
(iv) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument
or writing and the date of holding the same may also be proved in any other
manner which the Trustee deems sufficient; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in this
Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of any action taken, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to
have the principal amount determined by the Exchange Rate Agent by converting
the principal amount of such Security in the currency in which such Security
is denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities
10
of such series (or, if there is no such rate on such date, such rate on the
date determined as specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such
Series made by any Person in respect of any such action, or in the case of any
such vote, prior to such vote, such record date shall be the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders of such Securities furnished to the Trustee pursuant to
Section 6.01 prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 3.01 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed
in writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or taken
by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by
a Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such Persons, shall be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or
other action shall be valid or effective if made, given or taken more than 90
days after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Principal Corporate Trust Office, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
11
SECTION 1.06. Notices to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of any
event,
(1) such notice shall be sufficiently given (unless otherwise herein or
in such Security expressly provided) if in writing and mailed, first-class,
postage prepaid, to each Holder of Registered Securities affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, or, if not practicable, elsewhere in Europe on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of Registered
Securities shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 1.08. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of, Sections
310 and 318, inclusive, of the TIA, such imposed duties or incorporated
provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
12
SECTION 1.10. Successors and Assigns.
All convenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Holders and, to the extent provided in Article Fourteen hereof,
the holders of Senior Indebtedness and creditors in respect of General
Obligations, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.13. Legal Holidays.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, in any case where any Interest Payment Date, Stated
Maturity, Repayment Date or Redemption Date of any Security or any date on
which any Defaulted Interest is proposed to be paid (each, a "Payment Date")
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Payment Date, and, if
such payment is made, no interest shall accrue on such payment for the period
from and after any such Interest Payment Date, Stated Maturity, Repayment Date
or Redemption Date, as the case may be; provided, however, that if so provided
as contemplated by Section 3.01 with respect to any series of Securities, if
such next succeeding Business Day is in the next succeeding calendar year,
such payment shall be made on the Business Day immediately preceding such
Payment Date (in each case with the same force and effect as if made on the
Payment Date).
SECTION 1.14. Governing Law.
This Indenture and the Securities shall be construed in accordance with and
governed by the laws of the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
All Securities and any related coupons shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section
3.01, the Securities of a series shall be issuable solely in bearer form, or
in both registered form and
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bearer form. Unless otherwise specified as contemplated by Section 3.01,
Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities or coupons, as
evidenced by their execution of such Securities or coupons.
SECTION 2.02. Form of Securities.
Each Security and coupon shall be in one of the forms approved from time to
time by or pursuant to a Board Resolution or an indenture supplemented hereto.
Upon or prior to the delivery of a Security or coupons in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(i) such indenture supplemented hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been
approved, certified, in the case of a Board Resolution, by the
Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as permitted
by Section 3.04, the form thereof shall be established as provided in this
Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By___________________________________
Authorized Officer
Section 2.04. Global Securities.
If Securities of a series are issuable in whole or in part in global form,
as specified as contemplated by Section 3.01, then, notwithstanding clause
(xii) of Section 3.01 and the provisions of Section 3.02, such Global Security
shall represent such of the outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time
to time be reduced or increased to reflect exchanges or increased to reflect
the issuance of additional uncertificated securities of such series. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or Section 3.04.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued up
to the aggregate principal amount of Securities from time to time authorized
by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of that
series pursuant to this Article Three or Sections 4.07, 9.06 or 15.03);
(iii) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(iv) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Interest Payment
Date, the basis upon which interest shall be calculated if other than that
of a 360-day year consisting of twelve 30-day months and the right,
pursuant to Section 3.13 or as otherwise determined, of the Company to
defer or extend an Interest Payment Date;
(v) the place or places where, subject to the provisions of Section 5.02,
the principal of (and premium, if any) and interest, if any, on Securities
of the series shall be payable;
(vi) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(vii) the office or offices or agency where, subject to Section 5.02, the
Securities may be presented for registration of transfer or exchange;
(viii) the right, if any, to extend or shorten the maturity date of the
Securities of the series;
(ix) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(x) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(xi) whether, and under what conditions, additional sums will be payable
to Holders of Securities of the series pursuant to Section 5.04;
15
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xiii) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(xiv) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the ECU, and, if any such currency
of denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;
(xv) the currency or currencies in which payment of the principal of (and
premium, if any) and interest on the Securities will be made, the currency
or currencies, if any, in which payment of the principal of (and premium,
if any) or the interest on Registered Securities, at the election of each
of the Holders thereof, may also be payable and the periods within which
and the terms and conditions upon which such election is to be made and the
Exchange Rate and the Exchange Rate Agent;
(xvi) if payments of principal of (and premium, if any), or interest on
the Securities of the series are to be made in a Foreign Currency other
than the currency in which such Securities are denominated, the manner in
which the Exchange Rate with respect to such payments shall be determined;
(xvii) the terms, if any, upon which the Securities of the series may be
convertible into or exchanged for Common Stock, preferred stock (which may
be represented by depositary shares), other debt securities or warrants for
Common Stock, preferred stock or indebtedness or other securities of any
kind of the Company or any other obligor, and the terms and conditions upon
which such conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period and
any other provision in addition to or in lieu of those described herein;
(xviii) if the amount of payments of principal of (and premium, if any)
or any interest on Securities of the series may be determined with
reference to an index, the method or methods by which such amounts shall be
determined;
(xix) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
7.02;
(xx) any addition to or change in the Events of Default or covenants of
the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth,
or determined in the manner provided, in such Officers' Certificate or in any
such indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any instalment of principal is
payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different Redemption Dates or Repayment Dates
and may be denominated in different currencies or payable in different
currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
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Notwithstanding Section 3.01(ii) and unless otherwise expressly provided
with respect to a series of Securities, the aggregate principal amount of a
series of Securities may be increased and additional Securities of such series
may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in such form and
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any specification with respect to the Securities of any series, the
Registered Securities of each series shall be issuable only as Securities
without coupons in denominations of $1,000 and any integral multiple thereof
and the Bearer Securities of each series, if any, shall be issuable with
coupons and in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its President, a Vice Chairman of the Board, its Chief Financial
Officer or one of its Executive Vice Presidents and by its Secretary or one of
its Assistant Secretaries. The signatures of any or all of these officers on
the Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Company's Chairman of the Board, its President, a Vice
Chairman of the Board, its Chief Financial Officer, one of its Executive Vice
Presidents or the Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the
Company Order, authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
original issuance, no Bearer Security shall be mailed or otherwise delivered
to any location in the United States; and provided, further, that a Bearer
Security may be delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have delivered to the
Trustee, or such other Person as shall be specified in a temporary Global
Security delivered pursuant to Section 3.04, a certificate in the form
required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities in registered or permanent bearer form, then the Company
shall execute and the Trustee shall, in accordance with this Section and a
Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount
of the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the
name of the Depositary for such Global Security or Securities or the nominee
of such Depositary and (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
17
(i) the form of such Securities and coupons, if any, has been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general
principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if
all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to this Section 3.03 at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued and such documents
reasonably contemplate the issuance of all Securities of such series; provided
that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such
request, the statements made in the Officers' Certificate or other
certificates delivered pursuant to Sections 1.02 and 3.01 shall be true and
correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph may provide that Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time in the aggregate principal amount,
if any, established for such series pursuant to such procedures acceptable to
the Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution and
that such Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication; and
unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall
be dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.06,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and
cancelled. Notwithstanding the foregoing, if any Security or portion thereof
shall have been duly authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09 together with a written
statement (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such
18
Security or portion thereof has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order and the receipt of the
certifications and opinions required under Sections 3.01 and 3.03, the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denominations, substantially of the tenor of the definitive
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of any series
which may be issuable as Bearer Securities, such temporary Securities may be
in global form, representing such of the Outstanding Securities of such series
as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of
such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security only in compliance with the applicable
conditions set forth in Section 3.03. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global form, any
such temporary Global Security shall, unless otherwise provided in such
temporary Global Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit
of the operator of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct). Upon receipt of written instructions (which
need not comply with Section 1.02) signed on behalf of the Company by any
Person authorized to give such instructions, the Trustee or any
Authenticating Agent shall endorse such temporary Global Security to
reflect the initial principal amount, or an increase in the principal
amount, of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any time
represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security, and
subject to the second proviso in the following paragraph, the interest of a
beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities (including a definitive global
Bearer Security) of such series and of like tenor following the Global
Exchange Date (as defined below) when the account holder instructs
Euroclear or CEDEL S.A., as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form required by Section 3.11(i), dated no earlier than
15 days prior to the Global Exchange Date, copies of which certificate
shall be available
19
from the offices of Euroclear and CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and each
Paying Agent. Unless otherwise specified in such temporary Global Security,
any such exchange shall be made free of charge to the beneficial owners of
such temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL S.A.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
Global Security as the "Global Exchange Date" (the "Global Exchange Date"),
the Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 8.14, to any such Authenticating
Agent, definitive Securities in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the
Company. Unless otherwise specified as contemplated by Section 3.01, such
definitive Securities shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as may be specified by
the Company, the Trustee or any such Authenticating Agent, as may be
appropriate. On or after the Global Exchange Date, such temporary Global
Security shall be surrendered by the Common Depositary to the Trustee or
any such Authenticating Agent, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee or any such Authenticating Agent
shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series, of authorized denominations and
of like tenor as the portion of such temporary Global Security to be
exchanged, which, except as otherwise specified as contemplated by Section
3.01, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, provided, however, that, unless otherwise
specified in such temporary Global Security, upon such presentation by the
Common Depositary, such temporary Global Security is accompanied by a
certificate dated the Global Exchange Date or a subsequent date and signed
by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Global
Exchange Date or a subsequent date and signed by CEDEL S.A., as to the
portion of such temporary Global Security held for its account then to be
exchanged, each in the form required by Section 3.11(ii); and provided,
further, that a definitive Bearer Security (including a definitive global
Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the applicable conditions
set forth in Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global Security,
such temporary Global Security shall be endorsed by the Trustee or any such
Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal
amount shall be reduced for all purposes by the amount so exchanged. Until
so exchanged in full, such temporary Global Security shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section 3.01, interest
payable on such temporary Global Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Global Exchange
Date shall be payable, without interest, to Euroclear and CEDEL S.A. on or
after such Interest Payment Date upon delivery by Euroclear and CEDEL S.A.
to the Trustee or the Paying Agent, as the case may be, of a certificate or
certificates in the form required by Section 3.11(iii), for credit on or
after such Interest Payment Date to the respective accounts of the Persons
who are the beneficial owners of such temporary Global Security on such
Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and Cedel S.A. and not paid
as herein provided prior to the Global Exchange Date shall be returned to
the Trustee or Paying Agent, as the case may be, which, upon expiration of
two years after such Interest Payment Date, shall repay such interest on
Company Request in accordance with Section 5.03.
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SECTION 3.05. Registration, Registration of Transfer and Exchange.
With respect to Registered Securities, the Company shall keep or cause to be
kept a register (sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the registration of
transfers of Registered Securities and the Company shall appoint a "Security
Registrar", and may appoint any "Co-Security Registrar", as may be
appropriate, to keep the Security Register. Such Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the information contained in
such Security Register shall be available for inspection by the Trustee at the
office of the Security Registrar. In the event that any Registered Securities
issued hereunder have The City of New York as a Place of Payment, the Company
shall appoint either a Security Registrar or Co-Security Registrar located in
The City of New York.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of such series of any authorized denominations and of a like
aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated
Maturity, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment
in funds acceptable to the Company in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment from the Company; provided, however, that interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency of a Paying Agent, maintained pursuant
to Section 5.02 for such purpose, located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office
or agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to
a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
21
Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities
of such series shall no longer be eligible under Section 3.03, the Company
shall appoint a successor Depositary with respect to the Securities of such
series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.01(vi) shall no longer be effective with respect to the Securities
of such series and the Company will execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Securities
of such series, will authenticate and deliver Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will deliver, Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee
and such Depositary. Thereupon, the Company shall execute, and the Trustee
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver, without
service charge:
(a) to the Depositary or to each Person specified by such Depositary a
new Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms and
in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive form,
such Global Securities shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized denominations,
and delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing. The Trustee shall deliver
such Registered Securities to the Persons
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in whose names such Securities are so registered or to the Depositary. The
Trustee shall deliver Bearer Securities issued in exchange for a Global
Security pursuant to this Section 3.05 to the Depositary or to the Persons at
such addresses, and in such authorized denominations, as the Depositary for
such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing; provided,
however, that no definitive Bearer Security shall be delivered in exchange for
a temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar
shall be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business
15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities or
portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a
result of such exchanges the Company would suffer adverse consequences under
the United States federal income tax laws and regulations then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such exchanges unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such
Company Orders to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of
the destruction, loss or theft of any Security or coupon and (ii) there is
delivered to the Company, the Trustee and the Security Registrar such security
or indemnity as may be required by them to save each of them harmless, then,
in the absence of notice to the Company, the Trustee or the Security Registrar
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such mutilated, destroyed, lost or stolen Security or in
exchange for the Security to which a mutilated, destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and Stated Maturity and of like
tenor and principal amount, bearing
23
a number not contemporaneously outstanding and, if applicable, with coupons
corresponding to the coupons appertaining thereto; provided, however, that any
new Bearer Security will be delivered only in compliance with the conditions
set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security; provided, however,
that payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise specified as contemplated by
Section 3.01, in case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency referred to in Section 3.05) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will
not be payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of
this Indenture. At the option of the Company, payment of interest on any
Registered Security may be made by check in the currency designated for such
payment pursuant to the terms of such Registered Security mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account in such currency
designated by such Person in writing not later than ten days prior to the date
of such payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest to
the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount
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proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class, postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer
be payable pursuant to the following clause (ii). In case a Bearer Security
of any series is surrendered at the office or agency in a Place of Payment
for such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date for
payment and Defaulted Interest will not be payable on such proposed date
for payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such
default may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of, or in exchange for, or
in lieu of, any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners.
Title to any Bearer Security, any coupons appertaining thereto and any
temporary Global Security shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium,
if any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether
or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
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None of the Company, the Trustee, any Paying Agent, any Authenticating Agent
or the Security Registrar will have the responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation.
Unless otherwise provided with respect to a series of Securities, all
Securities and coupons surrendered for payment, registration of transfer,
exchange, repayment or redemption shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Securities so delivered or
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture or such Securities. All cancelled Securities or coupons held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and the Trustee shall deliver a certificate of such disposition to
the Company.
SECTION 3.10. Computation of Interest.
Interest on the Securities of each series shall be computed as shall be
specified as contemplated by Section 3.01.
SECTION 3.11. Forms of Certification.
Unless otherwise provided pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by a Person entitled to receive a
Bearer Security, such certification shall be provided substantially in the
form of Exhibit A hereto, with only such changes as shall be approved by
the Company.
(ii) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with the exchange of a portion of a temporary Global Security,
such certification shall be provided substantially in the form of Exhibit B
hereto, with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with payment of interest with respect to a temporary Global
Security prior to the related Global Exchange Date, such certification
shall be provided substantially in the form of Exhibit C hereto, with only
such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by a beneficial owner of a portion
of a temporary Global Security in connection with payment of interest with
respect to a temporary Global Security prior to the related Global Exchange
Date, such certification shall be provided substantially in the form of
Exhibit D hereto, with only such changes as shall be approved by the
Company.
SECTION 3.12. Judgments
The Company may provide, pursuant to Section 3.01, for the Securities of any
series that, to the fullest extent possible under applicable law and except as
may otherwise be specified as contemplated in Section 3.01, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest of the Securities of any series and any appurtenant coupons
in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 3.01 is of the essence and
agrees that judgments in respect of such Securities shall be given in the
Designated Currency; (b) the obligation of the Company to
26
make payments in the Designated Currency of the principal of (and premium, if
any) and interest on such Securities and any appurtenant coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
currency (after any premium and cost of exchange) in the country of issue of
the Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the
Business Day immediately following the day on which such Holder receives such
payment; (c) if the amount in the Designated Currency that may be so purchased
for any reason falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such shortfall;
and (d) any obligation of the Company not discharged by such payment shall be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
SECTION 3.13. Deferrals of Interest Payment Dates
If specified as contemplated by Section 3.01 with respect to the Securities
of a particular series, so long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
such series, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section 3.01 (each, an "Extension Period"). No Extension Period shall end on a
date other than an Interest Payment Date. At the end of any such Extension
Period, the Company shall pay all interest then accrued and unpaid on the
Securities (as provided in such Securities); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; provided, further, that during any such
Extension Period, the Company shall not, and shall not permit any Subsidiary
to, (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt security of the
Company that ranks pari passu in all respects with or junior in interest to
the Securities of such series or make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company that by their terms rank pari passu in all respects with or junior in
interest to the Securities of such series (other than (a) dividends or
distributions in Common Stock, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, the issuance of any Common Stock of
any class or series of preferred stock of the Company under any Rights Plan or
the repurchase of any rights distributed pursuant to a Rights Plan, (c)
payments under any FCN Guarantee relating to or with respect to such series of
Securities, (d) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's benefit plans for its directors, officers or
employees and (e) obligations under any dividend reinvestment and stock
purchase plan). Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such
Securities or extend beyond the Stated Maturity of the principal of such
Securities. Upon termination of any Extension Period and upon the payment of
all accrued and unpaid interest then due on any Interest Payment Date, the
Company may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The Company shall give the Trustee notice of its
election to begin any such Extension Period (x) at least ten Business Days
prior to the earlier of (i) the next succeeding Interest Payment Date on which
interest on Securities of such series would be payable but for such deferral
or (ii) the date the Company is required to give notice to any securities
exchange or other applicable self-regulatory organization or to Holders of the
Debentures of the record date or the date such interest is payable, or (y)
with respect to the Securities of a series issued to an FCN Capital Trust or a
trustee of such trust, so long as such Securities are held by such FCN Capital
Trust or a trustee of such trust, at least one Business Day prior to the
earlier of (i) the date on which distributions on the Preferred Securities of
such FCN Capital Trust would be payable but for such deferral or (ii) the date
the Institutional Trustee of such FCN Capital Trust or such FCN Capital Trust
is required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such distributions are payable, but in any event not
less than one Business Day prior to such
27
record date. For purposes hereof, neither the Company's Senior Indebtedness nor
its General Obligations shall be deemed to be pari passu with this Security.
The Trustee, at the expense of the Company, shall promptly give notice of the
Company's election to begin any such Extension Period to the Holders of the
Outstanding Securities of such series.
SECTION 3.14. Right of Set-Off
With respect to the Securities of a series issued to an FCN Trust, or a
trustee of such trust, notwithstanding anything to the contrary herein, the
Company shall have the right to set-off any payment it is otherwise required to
make thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the FCN Guarantee relating to such Security or under Section 7.08
hereof.
SECTION 3.15. Agreed Tax Treatment
Unless otherwise specified in the Security, each Security issued hereunder
shall provide that the Company and, by its acceptance of a Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States federal,
state and local tax purposes it is intended that such Security constitutes
indebtedness.
SECTION 3.16. 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 or other related material as a convenience to Holders; provided
that any such notice or other related material may state that no representation
is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or other related
material and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and, except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, in
accordance with this Article.
SECTION 4.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable at the option
of the Company shall be evidenced by an Officers' Certificate. In case of any
redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and the Security Registrar of such Redemption Date
and of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
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SECTION 4.03. Selection by Security Registrar of Securities to be Redeemed.
If less than all the Securities of any series with the same terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal
to or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains
outstanding shall not be less than the minimum authorized denomination for
Securities of such series.
The Security Registrar shall promptly notify the Company, the Trustee and
the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion
of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.06,
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the manner
of calculation thereof,
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed,
(iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date,
(v) the place or places where such Securities, together in the case of
Bearer Securities with all remaining coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price,
(vi) that the redemption is for a sinking fund, if such is the case, and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number (or
any other number used by a Depositary to identify such Securities), if any,
of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company.
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SECTION 4.05. Deposit of Redemption Price.
At or prior to the opening of business on any Redemption Date, the Company
shall deposit or cause to be deposited with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 5.03) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided, however, that deposits with respect to Bearer Securities shall be
made with a Paying Agent or Paying Agents located outside the United States
except as otherwise provided in Section 5.02, unless otherwise specified as
contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at
the Redemption Price; provided, however, that instalments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest. Instalments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the close of business on
the relevant Regular Record Dates according to their terms and the provisions
of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from
the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company in a Place of Payment therefor (with, if
the Company or the Security Registrar so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder of such Security or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and Stated
Maturity, containing identical terms and conditions, of any authorized
denominations as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default
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known to the Trustee, except that where the giving of notice of redemption of
any Securities shall theretofore have been made, the Trustee shall, subject to
the provisions of Section 14.08, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness and creditors in respect of General Obligations, except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the Holders and applied in the manner set forth in Section 7.06;
provided, however, that in case such Event of Default shall have been waived
as provided herein or otherwise cured, such moneys shall thereafter be held
and applied in accordance with the provisions of this Article.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on the Securities of such series in accordance with the
terms of the Securities of such series, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by Section 3.01
with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only outside the United
States upon presentation and surrender of the several coupons for such
interest instalments as are evidenced thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of such office or
agency. If Securities of a series may be issuable as Bearer Securities, the
Company will maintain (A) in the Borough of Manhattan, The City of New York an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent for the Securities of that series in
London or Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for such series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee
with the address thereof, such presentations, and surrenders of Securities of
that series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts
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payable on Bearer Securities of that series pursuant to Section 5.04) at the
place specified for the purpose as contemplated by Section 3.01, and the
Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, payment of principal of
and any premium and interest denominated in Dollars (including additional
amounts payable in respect thereof) on any Bearer Security may be made at an
office or agency of, and designated by, the Company located in the United
States if (but only if) payment of the full amount of such principal, premium,
interest or additional amounts in Dollars at all offices outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or similar
restrictions and the Trustee receives an Opinion of Counsel that such payment
within the United States is legal. Unless otherwise provided as contemplated
by Section 3.01 with respect to any series of Securities, at the option of the
Holder of any Bearer Security or related coupon, payment may be made by check
in the currency designated for such payment pursuant to the terms of such
Bearer Security presented or mailed to an address outside the United States or
by transfer to an account in such currency maintained by the payee with a bank
located outside the United States.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of
such Securities, in one or more other cities, and may from time to time
rescind such designations and appointments; provided, however, that no such
designation, appointment or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless and until
the Company rescinds one or more such appointments, the Company hereby
appoints: (i) The Chase Manhattan Bank, as its Paying Agent in The City of New
York with respect to all series of Securities having a Place of Payment in The
City of New York and (ii) the Bank at its principal office as its Paying Agent
in the City of Chicago with respect to all series of Securities having a Place
of Payment in the City of Chicago.
Section 5.03. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any series
of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of such series and any
appurtenant coupons, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, at or prior to the opening of business on each due date
of the principal of, premium, if any, or interest on any Securities of such
series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will
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(i) hold all sums held by it for the payment of principal of, premium, if
any, or interest on Securities of such series and any appurtenant coupons
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, premium or interest on the Securities of such series or any
appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payments by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in each Place
of Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 5.04. Additional Sums.
If the Securities of a series provide for the payment of additional sums,
the Company will pay to the Holder of any Security of any series or any coupon
appertaining thereto additional sums as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
(or premium, if any) or interest on, or in respect of, any Security of any
series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed
to include mention of the payment of additional sums provided for in this
Section to the extent that, in such context, additional sums are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional sums (if applicable) in any
provisions hereof shall not be construed as excluding additional sums in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional sums, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment
of principal (and premium, if any) or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of (and premium, if any) or interest on the
Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge
described in the Securities of that series. If any such withholding shall be
required, then such Officers' Certificate shall specify by country the amount,
if any,
33
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional sums required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate (provided, however,
that one of the signatories of which shall be the Company's principal executive
officer, principal financial officer or principal accounting officer) stating,
as to each signer thereof, that
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the Company
has fulfilled all its obligations and complied with all conditions and
covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, an Event of Default, or if such an event has occurred
and is continuing, specifying such event known to him and the nature and
status thereof.
For purposes of this Section, compliance or default shall be determined
without regard to any period of grace or requirement of notice provided for
herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.
So long as any of the Securities shall be Outstanding, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises to carry on its business;
provided, however, that nothing in this Section 5.06 shall prevent (i) any
consolidation or merger of the Company, or any conveyance or transfer of its
property and assets substantially as an entirety to any person, permitted by
Article Ten, or (ii) the liquidation or dissolution of the Company after any
conveyance or transfer of its property and assets substantially as an entirety
to any person permitted by Article Ten.
SECTION 5.07. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock, or (b) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest to the
Securities of such series or make any guarantee payments with respect to any
guarantee by the Company of debt securities of any Subsidiary of the Company if
such guarantee ranks pari passu with or junior in interest to the Securities
(other than (a) dividends or distributions in Common Stock, (b) any declaration
of a dividend in connection with the implementation of a Rights Plan, the
issuance of any rights, of any Common Stock or any class or series of preferred
stock of the Company or of any other property under any Rights Plan or the
redemption or repurchase of any rights distributed pursuant to a Rights Plan,
(c) payments under any FCN Guarantee relating to or with respect to such series
of Securities, (d) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's benefit plans for its directors, officers or
employees and (e) obligations under any dividend reinvestment and stock
purchase plan) if at such time (i) there shall have occurred any event of which
the Company has actual knowledge that (A) with the giving of notice or the
lapse of time or both, would constitute an Event of Default with respect to the
Securities of such series and (B) in respect of which the Company shall not
have taken reasonable steps to cure, (ii) if the Securities of such series are
held by an FCN
34
Capital Trust or a trustee of such trust, the Company shall be in default with
respect to its payment of any obligations under the FCN Guarantees relating to
the Trust Securities issued by such FCN Capital Trust or (iii) the Company
shall have given notice of its election to begin an Extension Period with
respect to the Securities of such series as provided herein and shall not have
rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing. For purposes hereof, neither the Company's Senior
Indebtedness nor its General Obligations shall be deemed to be pari passu with
the Securities.
The Company also covenants with each Holder of Securities of a series issued
to an FCN Capital Trust or a trustee of such FCN Capital Trust (i) to maintain
directly or indirectly 100% ownership of the Common Securities of such FCN
Capital Trust; provided, however, that any permitted successor of the Company
hereunder may succeed to the Company's ownership of such Common Securities,
(ii) not to voluntarily terminate, wind-up or liquidate such FCN Capital Trust,
except upon prior approval of the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve, and (a) in
connection with a distribution of the Securities of such series to the holders
of Trust Securities in liquidation of such FCN Capital Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Declaration and (iii) to use its reasonable efforts, consistent
with the terms and provisions of such Declaration, to cause such FCN Capital
Trust to remain classified as a grantor trust and not an association taxable as
a corporation for United States federal income tax purposes.
SECTION 5.08. Original Issue Discount.
On or before January 15 of each year following a year during which any
Securities are outstanding, the Company shall furnish to each Paying Agent such
information as may be reasonably requested by each Paying Agent in order that
such Paying Agent may prepare the information which it is required to report
for such preceding year on Internal Revenue Service Forms 1096 and 1099
pursuant to Section 6049 of the Code. Such information shall include the amount
of original issue discount, if any, includible in income for each $1,000 of
principal amount at Stated Maturity of outstanding Securities during such year.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 15 days after each February 1 and August 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
February 1 and August 1, and (ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is requested to be furnished; provided, however,
that if and so long as the Trustee is the Security Registrar for Securities of
a series, no such list need be furnished with respect to such series of
Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security
35
of such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the
Holders of all Securities with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(a) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 6.02(i), or
(b) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender,
the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the Holders of Securities of such series or all
Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such material to
all such Holders of Securities with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee.
(i) Within 60 days after November 15 of each year commencing with the year
1997, the Trustee shall mail to each Holder reports concerning the Trustee and
its action under the Indenture as may be required pursuant to the Trust
Indenture Act if and to the extent and in the manner provided pursuant
thereto.
(ii) Reports pursuant to this Section shall be transmitted by mail (1) to
all Holders of Registered Securities, as their names and addresses appear in
the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of
a Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify
the Trustee when any Securities are listed on any securities exchange.
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SECTION 6.04. Reports by Company.
The Company will:
(i) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(ii) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to the
extent provided in Section 6.03(ii), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default.
"Event of Default", with respect to any series of Securities, wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless it is either inapplicable to a particular series or
it is specifically deleted or modified in the supplemental indenture or Board
Resolution under which such series of Securities is issued or in the form of
Security for such series:
(i) default in the payment of any interest upon any Securities of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of the
Securities of that series, shall not constitute a default in the payment of
interest for this purpose; or
(ii) default in the payment of all or any part of the principal of (or
premium, if any, on) any Securities of that series as and when the same
shall become due and payable either at maturity, upon redemption (including
redemption for the sinking fund), by declaration or otherwise; provided,
however, that a valid extension of the maturity of such Securities in
accordance with the terms of such Securities shall not constitute a default
in the payment of principal or premium, if any; or
(iii) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
7.01 specifically dealt with and other than a covenant or warranty set
forth exclusively in terms of any particular series of Securities
established as contemplated in this Indenture), 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 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
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(iv) the entry of a decree or order by a court having jurisdiction in the
premises granting relief in respect of the Company in an involuntary case
under the Federal Bankruptcy Code, adjudging the Company a bankrupt, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or appointing a receiver (or other similar
official) of the Company, or of substantially all of its properties, or
ordering the winding up or liquidation of its affairs under any such law,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(v) the institution by the Company of proceedings to be adjudicated a
bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or similar law, or the consent by the Company to the filing of
any such petition or to the appointment of a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar official) of
the Company, or of substantially all of its properties under any such law;
or
(vi) any other Event of Default provided with respect to Securities of
that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities for which
there are Securities Outstanding occurs and is continuing, then, and in every
such case, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series may declare the principal of all
the Securities of such series (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) to be immediately due and
payable, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration the same shall become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(a) all overdue instalments of interest on all Securities of such
series,
(b) the principal of and premium, if any, on any Securities of such
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series,
(c) to the extent that payment of such interest is lawful, interest
upon overdue instalments of interest at the rate or rates prescribed
therefor by the terms of the Securities of such series, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents and
counsel and all other amounts due the Trustee under Section 8.07 and
(ii) all other Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 7.13.
In the case of Securities of a series issued to an FCN Capital Trust, or the
trustee of such trust, the holders of a majority in aggregate liquidation
amount (as determined in the Declaration under which such FCN Capital Trust is
formed) of the related series of Trust Securities issued by such FCN Capital
Trust shall also have the
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right to rescind and annul such declaration and its consequences by written
notice to the Company and the Trustee, subject to the satisfaction of the
conditions set forth in clauses (i) and (ii) above of this Section 7.02.
No such recission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(i) default is made in the payment of any instalment of interest on any
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holder of any such Security or coupon appertaining thereto, if any, the
whole amount then due and payable on any such Security or coupon for
principal, premium, if any, and interest, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such
interest shall be lawful and, if the Securities of that series are held by an
FCN Capital Trust or a trustee of such trust, without duplication of any other
amounts paid by the FCN Capital Trust or trustee in respect thereof) upon
overdue instalments of interest, at the rate or rates prescribed therefor by
the terms of any such Security; and, in addition thereto, such further amount
as shall be sufficient to cover the reasonable costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to any series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal, premium,
if any, and interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 8.07) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
39
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or under the Securities
of any series, or coupons (if any) appertaining thereto, may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of
such series or coupons appertaining thereto or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07, be for
the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money Collected.
Any money collected by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee, and, in case of the distribution of such money
on account of principal, premium, if any, or interest, upon presentation of
the Securities of such series or coupons appertaining thereto, if any, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
SECOND: To the payment of all Senior Indebtedness and General Obligations
of the Company if and to the extent required by Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest,
respectively. The Holders of each series of Securities denominated in ECU,
any other composite currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Securities and matured but unpaid
interest on such series of Securities in the currency in which such series
of Securities is denominated into Dollars at the Exchange Rate as of the
date of declaration of acceleration of the Maturity of the Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to Securities of such series;
40
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of such series or to obtain or
to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of Securities of such
series.
SECTION 7.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest, Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional,
to receive payment of the principal of, premium, if any, and (subject to
Section 3.07) interest on such Security or payment of such coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment on the Redemption Date or Repayment Date) and
to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder. In the case of Securities
of a series issued to an FCN Capital Trust or a trustee of such trust, any
holder of the corresponding series of Preferred Securities issued by such FCN
Capital Trust shall have the right, upon the occurrence of an Event of Default
described in Section 7.01(i) or 7.01(ii), to institute a suit directly against
the Company for enforcement of payment to such holder of principal of
(premium, if any) and (subject to Section 3.07) interest on the Securities
having a principal amount equal to the aggregate liquidation amount (as
determined in the Declaration under which such FCN Capital Trust is formed) of
such Preferred Securities of the corresponding series held by such holder; the
foregoing right to institute a suit directly against the Company shall not be
impaired without the consent of such holder of Preferred Securities.
SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee, any Holder of a Security or coupon, or any holder of a
Preferred Security 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,
such Holder or such holder of Preferred Securities, then and in every such
case the Company, the Trustee, the Holders and the holders of the Preferred
Securities 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, the Holders and the holders of the
Preferred Securities shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, lost, destroyed or stolen Securities or coupons in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
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SECTION 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred 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 and the right and remedy given to the holders of Preferred
Securities by Section 7.08 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of the
Preferred Securities, as the case may be.
SECTION 7.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
(i) such direction shall not be in conflict with any rule of law or with
this Indenture,
(ii) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability, and
(iv) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all the Securities of such
series waive any past default hereunder and its consequences, except a default
not theretofore cured
(i) in the payment of the principal of, premium, if any, or interest on
any Security of such series, or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected;
provided, however, that if the Securities of such series are held by a FCN
Capital Trust or a trustee of such trust, such waiver or any modification to
such waiver shall not be effective until the holders of a majority in
liquidation amount of the applicable Trust Securities of the applicable FCN
Capital Trust (as determined in the Declaration under which such FCN Capital
Trust is formed) shall have consented to such waiver or modification to such
waiver; provided, further, that if the consent of the Holder of each
Outstanding Security is required, such waiver shall not be effective until
each holder of such Trust Securities of the applicable FCN Capital Trust shall
have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and any default or
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Securities of such series under this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by an FCN Capital Trust, on behalf of all holders of
Preferred Securities issued by such FCN Capital Trust.
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SECTION 7.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder of Securities or coupons for the enforcement of the
payment of the principal of, premium, if any, or interest on any Security or
payment of any coupon on or after the respective Stated Maturities expressed
in such Security or coupon (or, in the case of redemption or repayment, on or
after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.
(i) Except during the continuance of an Event of Default with respect to any
series of Securities,
(a) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture with respect to Securities of
such series, and no implied covenants or obligations shall be read into
this Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may conclusively
rely with respect to such series, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform as to form to the requirements of the
Indenture.
(ii) In case an Event of Default with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture with respect to such series, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(iii) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
43
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.02. Notice of Default.
Within 90 days after the occurrence of any default hereunder with respect to
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series entitled to receive reports pursuant to Section
6.03(ii) notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of, premium, if any, or
interest on any Security of such series, or any related coupons or in the
payment of any sinking fund instalment with respect to Securities of such
series the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 7.01(iii) with respect to
Securities of such series, no such notice to Holders of Securities of such
series shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default", with respect to Securities of
any series, means any event which is, or after notice or lapse of time, or
both, would become, an Event of Default with respect to Securities of such
series.
SECTION 8.03. Certain Rights of Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
44
(vi) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Eight shall
also be afforded to such Paying Agent, Authenticating Agent or Security
Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 8.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 8.08 and 8.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement.
The Company agrees
(i) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
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As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(iv) or (v), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar
law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture, the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
The claims of the Trustee under this Section shall not be subject to the
claims of the holders of Senior Indebtedness or creditors in respect of
General Obligations under Article Fourteen.
SECTION 8.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 of the Trust Indenture Act, the Trustee shall either
eliminate such conflicting interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Trustee with respect to the
Securities of any particular series of Securities other than that series or by
virtue of being (i) trustee under the Indenture originally dated as of
November 15, 1996, between the Company and the Trustee, (ii) a trustee under
the Series A Declaration or Series B Declaration, or (iii) a trustee under the
Series A Guarantee or the Series B Guarantee.
SECTION 8.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each series of
Securities hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject
to supervision or examination by Federal or State authority, provided,
however, that if Section 310(a) of the Trust Indenture Act or the rules and
regulations of the Commission under the Trust Indenture Act at any time permit
a corporation organized and doing business under the laws of any other
jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 8.09 shall be automatically deemed amended to
permit a corporation organized and doing business under the laws of any such
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly
or indirectly controlling, controlled by or under common control with the
Company may serve as Trustee. If at any time the Trustee with respect to any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
46
(ii) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities at
any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to
any series of Securities after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of such series
for at least six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series, or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of Trustee with respect to any series of Securities for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 8.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to such series of
Securities shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to such series and to that extent
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(vi) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each place of payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Principal Corporate Trust
Office.
47
SECTION 8.11. Acceptance of Appointment by Successor.
(i) In the case of the appointment hereunder of a successor Trustee with
respect to any series of Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective with
respect to all or any series as to which it is resigning as Trustee, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to all or any such series; but, on request of the Company or such
successor Trustee, such retiring Trustee shall upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of such retiring Trustee with respect to all or
any such series; and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to all or any such series, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (b) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (c) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, subject nevertheless to its lien, if any, provided for in
Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
48
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection
of such claims against the Company (or any such other obligor). A Trustee that
has resigned or been removed shall be subject to and comply with said Section
311 to the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents.
The Trustee may appoint an Authenticating Agent or Agents, which may include
any Affiliate of the Company, with respect to one or more series of
Securities. Such Authenticating Agent or Agents at the option of the Trustee
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication or the delivery of Securities to
the Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent, a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in
writing by the Company and if such Authenticating Agent meets the minimum
capitalization requirements of this Section 8.14. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Officer
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(v) to add any additional defaults or Events of Default with respect to
all or any series of the Securities (and, if such defaults or Event of
Default is applicable to less than all series of Securities, specifying the
series to which such default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
50
(vii) to add to, change or eliminate any of the provisions of this
Indenture, provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision or
(b) shall not apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms
thereof; or
(xi) to add to or change or eliminate any provision of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Securities of any series or any appurtenant coupons
in any material respect; or
(xii) to make any change that does not adversely affect the rights of any
Holder of a Security in any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture or indentures (acting as one class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities of each
such series and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of
any instalment of interest (or premium, if any) on, any Security, or reduce
the principal amount thereof or any premium thereon or the rate of interest
thereon, or change the obligation of the Company to pay additional sums
pursuant to Section 5.04 (except as contemplated by Section 10.01 (i) and
permitted by Section 9.01), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
7.02, or change the method of calculating interest thereon or the coin or
currency in which any Security (or premium, if any, thereon) or the
interest thereon is payable, or reduce the minimum rate of interest
thereon, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment
Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or of
certain defaults hereunder and their consequences) provided for in this
Indenture or reduce the requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except
to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived; provided, however, that if
the Securities of such series are held by an FCN Capital Trust or a trustee
of such trust, such supplemental indenture shall not be effective until the
holders of a majority in liquidation amount of Trust Securities of the
applicable FCN Capital Trust (as determined in the Declaration under which
such FCN Capital Trust is formed) shall have consented to such supplemental
indenture; provided,
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further, that if the consent of the Holder of each outstanding Security is
required, such supplemental indenture shall not be effective until each
holder of the Trust Securities of the applicable FCN Capital Trust shall
have consented to such supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 8.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by and complies with this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, liabilities, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey or transfer its properties and assets substantially as an entirety
to any Person, unless
52
(i) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest
(including all additional amounts, if any, payable pursuant to Section
5.04) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become a Event of Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in
accordance with Section 10.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance
or transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor corporation had been named as the Company herein.
In the event of any such conveyance or transfer, the Company as the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and may be dissolved, wound up and liquidated at any time
thereafter.
The successor corporation may cause to be signed, and may issue either in
its own name or in the name of First Chicago NBD Corporation, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee or the Authenticating Agent; and,
upon the order of such successor corporation instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee or the Authenticating Agent shall authenticate and
deliver any Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee or the Authenticating Agent for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee or the Authenticating
Agent for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and rights to receive payments thereon and any right to
receive additional amounts, as provided in Section 5.04), and the Trustee, on
receipt of a Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(i) either
(a) all Securities theretofore authenticated and delivered (other
than (1) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has not been waived as provided in
Section 3.05, (2) coupons
53
appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 4.06, (3) coupons appertaining to Bearer Securities
surrendered for repayment pursuant to Section 15.03 and maturing after
the Repayment Date, whose surrender has been waived as provided in
Section 15.03, (4) Securities and coupons which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.06, and (5) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 5.03) have been delivered to the
Trustee for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year,
or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in
trust for the purpose, an amount (said amount to be immediately due and
payable to the Holders) sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered
to the Trustee for cancellation, for principal, premium, if any, and
interest to the date of such deposit (in the case of Securities which
have become due and payable), or to the Maturity or Redemption Date, as
the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (b) of clause
(i) of this Section, the obligations of the Trustee under Section 11.02 and
the last paragraph of Section 5.03 shall survive. The Trustee may give notice
at the Company's expense to the Holders of Securities Outstanding of the
immediate availability of the amount referred to in Clause (i) of this Section
11.01. Funds held pursuant to this Section shall not be subject to the
provisions of Article Fourteen.
SECTION 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 5.03, all money
deposited with the Trustee pursuant to Section 11.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons, if any, and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent), as the Trustee may determine, to the Persons entitled thereto, of the
principal, premium, if any, and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
SECTION 11.03. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 11.02 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money in accordance with Section 11.02.
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ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the
Company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any
successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the
Securities or coupons or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute,
of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the
Securities or coupons or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto and
(ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
55
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying (i) the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that
series, (ii) the portion thereof, if any, which is to be satisfied by payment
of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 13.02,
and (iii) that none of such Securities has theretofore been so credited and
stating the basis for such credit, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each sinking fund
payment date the Security Registrar shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 4.03
and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 4.04. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 4.06 and 4.07 and shall be
subject to Section 4.08.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Securities Subordinate to Senior Indebtedness and General
Obligations.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness and General Obligations.
The Securities will rank pari passu with any and all securities issued
pursuant to that certain Indenture dated as of November 15, 1996, between the
Company and The Chase Manhattan Bank, as trustee (unless such securities are
by their terms senior in right of payment to the securities heretofore issued
under said Indenture). The Securities will also rank pari passu with the
guarantees issued by the Company under the Series A Guarantee and the Series B
Guarantee.
SECTION 14.02. No Payment When Senior Indebtedness in Default; Payment Over of
Proceeds Upon Dissolution, Etc.
In the event that the Company shall default in the payment of any principal
of (or premium, if any) or interest on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, upon written notice of
such default to the Company by the holders of Senior Indebtedness or any
trustee therefor, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of (or premium, if any) or interest on the
Securities, or in respect of any redemption, repayment, retirement, purchase
or other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceedings
relating to the Company, its creditors or its property, (b) any proceeding for
the liquidation, dissolution or other winding up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors or (d) any
other marshalling of the assets of the Company (each such event, if any,
herein sometimes referred to as a "Proceeding"), all Senior Indebtedness and
General Obligations (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to any Holder of any of the Securities on account
56
thereof. Any payment or distribution, whether in cash, securities or other
property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to
the payment of all Senior Indebtedness and General Obligations at the time
outstanding and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness and creditors in respect of General Obligations in
accordance with the priorities then existing among such holders and creditors
until all Senior Indebtedness and General Obligations (including any interest
thereon accruing after the commencement of any Proceeding) shall have been
paid in full.
In the event of any Proceeding, after payment in full of all sums owing with
respect to Senior Indebtedness and General Obligations, the Holders of the
Securities, together with the holders of any obligations of the Company
ranking on a parity with the Securities, shall be entitled to be paid from the
remaining assets of the Company the amounts at the time due and owing on
account of unpaid principal of (and premium, if any) and interest on the
Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Company ranking junior to the
Securities and such other obligations. In the event that, notwithstanding the
foregoing, any payment or distribution of any character or any security,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness and
General Obligations at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior Indebtedness and General Obligations shall have
been paid in full, such payment or distribution or security shall be received
in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness and creditors in
respect of General Obligations at the time outstanding in accordance with the
priorities then existing among such holders and creditors for application to
the payment of all Senior Indebtedness and General Obligations remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness and
General Obligations in full. In the event of the failure of the Trustee or any
Holder to endorse or assign any such payment, distribution or security, each
holder of Senior Indebtedness and creditor in respect of General Obligations
is hereby irrevocably authorized to endorse or assign the same.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of
Senior Indebtedness or creditors in respect of General Obligations or consent
to the filing of a financing statement with respect thereto) as may, in the
opinion of counsel designated by the holders of a majority in principal amount
of the Senior Indebtedness and General Obligations at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 14.02 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Securities or ranking junior to the
Securities.
Section 14.03 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture, or in any
of the Securities, shall prevent (a) the Company at any time, except during
the conditions described in the first paragraph of Section 14.02 or the
pendency of any Proceeding referred to in Section 14.02 from making payments
at any time of principal of (and
57
premium, if any) or interest on the Securities, or (b) the application by the
Trustee (subject to Section 14.08) of any moneys deposited with it hereunder
to the payment of or on account of the principal of (and premium, if any) or
interest on the Securities or the retention of such payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such payment would have been prohibited by the provisions of this
Article.
Section 14.04. Subrogation to Rights of Holders of Senior Indebtedness and
Creditors in respect of General Obligations.
Subject to the payment in full of all amounts to become due on all Senior
Indebtedness and General Obligations, or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness and creditors in respect of General Obligations, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness or creditors in
respect of such General Obligations pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to Senior Indebtedness and General
Obligations of the Company to substantially the same extent as the Securities
are subordinated to the Senior Indebtedness and General Obligations and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness or creditors in
respect of such General Obligations) to the rights of the holders of such
Senior Indebtedness or creditors in respect of such General Obligations to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness or General Obligations until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness or creditors in respect of General Obligations of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness or creditors in respect of General Obligations by Holders
of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness or creditors in respect of General
Obligations, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness or
General Obligations.
SECTION 14.05. Provisions Solely to Define Relative Rights.
The provisions of this Article Fourteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness and General Obligations on
the other hand. Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Securities is intended to or shall (a) impair, as
between the Company and the Holders of the Securities, the obligations of the
Company, which are absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their rights
in relation to the holders of Senior Indebtedness or creditors in respect of
General Obligations; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture including, without limitation, filing and voting
claims in any Proceeding, subject to the rights, if any, under this Article
Fourteen of the holders of Senior Indebtedness and creditors in respect of
General Obligations to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
SECTION 14.06. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article Fourteen and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
58
SECTION 14.07. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness or any
present or future creditor in respect of any General Obligation to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness and creditors in respect of
General Obligations may, at any time and from to time, without the consent of
or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article Fourteen or the
obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness and creditors in respect of General Obligations, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Indebtedness or
General Obligations, or otherwise amend or supplement in any manner Senior
Indebtedness or General Obligations or any instrument evidencing the same or
any agreement under which Senior Indebtedness or General Obligations are
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness or General
Obligations; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness or General Obligations; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
SECTION 14.08. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article Fourteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Indebtedness or a creditor in
respect of General Obligations or from any trustee, agent or representative
therefor; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any monies may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for
which they were received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 8.01 the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee, agent or
representative therefor) or a creditor in respect of General Obligations to
establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee, agent or representative therefor) or a creditor in respect of
General Obligations. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness or a creditor in respect of General Obligations
to participate in any payment or distribution pursuant to this Article
Fourteen the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or General Obligations held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Fourteen and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
59
SECTION 14.09. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article Fourteen, the Trustee, subject to the provisions of Section 8.01,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent
or other Person making such payment or distribution, delivered to the Trustee
or to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior
Indebtedness, creditors in respect of General Obligations and holders of other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article Fourteen.
SECTION 14.10. Trustee Not Fiduciary for Holders of Senior Indebtedness or
Creditors in respect of General Obligations.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness or
creditors in respect of General Obligations and shall not be liable to any
such holders or creditors if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holder of Senior Indebtedness or
creditor in respect of General Obligations shall be entitled by virtue of this
Article Fourteen or otherwise.
SECTION 14.11. Rights of Trustee as Holder of Senior Indebtedness or Creditor
in respect of General Obligations; Preservation of Trustee's
Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Fourteen with respect to any Senior Indebtedness
which may at any time be held by it or any General Obligations which may be
owed to it, to the same extent as any other holder of Senior Indebtedness or
creditor in respect of General Obligations, and, subject to the provisions of
the Trust Indenture Act, nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder or creditor.
SECTION 14.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Fourteen shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Fourteen in addition to or in place of the Trustee.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for
Securities of such series) in accordance with this Article.
Section 15.02. Repayment of Securities.
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment
Date as specified pursuant to Section 3.01.
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Section 15.03. Exercise of Option; Notice.
Each Holder desiring to exercise such Xxxxxx's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole
or in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor
more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of
such option shall be made at an office or agency located outside the United
States except as otherwise provided in Section 5.02. Such notice, which shall
be irrevocable, shall specify the principal amount of such Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Security or an integral multiple thereof, and shall identify the Security to
be repaid and, in the case of a partial repayment of the Security, shall
specify the denomination or denominations of the Security or Securities of the
same series to be issued to the Holder for the portion of the principal of the
Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
except as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered
a new Registered Security or Securities of the same series and tenor of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a
new Registered Security or Securities or new Bearer Security or Securities
(and all appurtenant unmatured coupons and matured coupons in default) or any
combination thereof of the same series and tenor of any authorized
denomination or denominations specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be paid; provided, however, that the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States federal income tax
laws and regulations in effect at the time of the exchange; neither the
Company, the Trustee nor the Security Registrar shall issue Registered
Securities for Bearer Securities if it has received an Opinion of Counsel that
as a result of such issuance the Company would suffer adverse consequences
under the United States federal income tax laws then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such
Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the
case of any Security repaid or to be repaid only in part, to the portion of
the principal of such Security which has been or is to be repaid.
Section 15.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 15.03.
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Section 15.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such
Securities shall, unless purchased in accordance with Section 15.04, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Securities shall cease to bear interest and
shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent
provided above, shall be void, unless the Company shall default in the payment
of such price, in which case the Company shall continue to be obligated for
the principal amount of such Securities and shall be obligated to pay interest
on such principal amount at the rate prescribed therefor by such Securities
from time to time until payment in full of such principal amount.
ARTICLE SIXTEEN
Meetings of Holders of Securities
Section 16.01. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or
other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 16.02. Call, Notice and Place of Meetings.
(i) The Trustee may at any time call a meeting of Holders of Securities of
any series issuable in whole or in part as Bearer Securities for any purpose
specified in Section 16.01, to be held at such time and at such place in the
City of Chicago, Illinois, the Borough of Manhattan, The City of New York, or
in London as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 1.06, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of
any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section
16.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the
time and the place in the City of Chicago, Illinois, the Borough of Manhattan,
The City of New York, or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (i) of
this Section.
Section 16.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
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Section 16.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of a greater
percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote such greater percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In the absence of a quorum in any
other case the meeting may be adjourned for a period of not less than 10 days
as determined by the chairperson of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairperson of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 16.02(i), except that such notice need
be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02,
any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of a greater percentage in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders of such
greater percentage in principal amount of the Outstanding Securities of that
series; and provided, further, that, except as limited by the provisos to
Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other Act which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Section 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.04 and the appointment of any proxy shall be proved in the manner
specified in Section 1.04 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.04 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 1.04 or other proof.
63
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount (or the equivalent in
ECU, any other composite currency or a Foreign Currency) of Securities of such
series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 16.02 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 16.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section
16.02 and, if applicable, Section 16.04. Each copy shall be signed and
verified by the affidavits of the permanent chairperson and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
Expenses
Section 17.01. Payment of Expenses by the Company.
The Company hereby irrevocably and unconditionally guarantees to each person
or entity to whom any FCN Capital Trust is now or hereafter becomes indebted
or liable (the "Expense Beneficiaries") the full payment, when and as due, of
any and all Expense Obligations (as hereinafter defined) to such Expense
Beneficiaries. As used herein, "Expense Obligations" means any costs, expenses
or liabilities of any FCN Capital Trust, other than obligations of such FCN
Capital Trust to pay to holders of any Trust Securities or other similar
interests in such FCN Capital Trust the amounts due such holders pursuant to
the terms of the Trust Securities or such other similar interests, as the case
may be. This Article Seventeen is intended to be for the benefit of, and to be
enforceable by, all such Expense Beneficiaries, whether or not such Expense
Beneficiaries have received notice hereof.
64
Section 17.02. Term of Agreement.
This Article Seventeen shall terminate and be of no further force and effect
with respect to holders of Trust Securities of an FCN Capital Trust upon the
later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Trust Securities (whether upon redemption,
liquidation, exchange or otherwise) of such FCN Capital Trust and (b) the date
on which there are no Expense Beneficiaries remaining; provided, however, that
this Article Seventeen shall continue to be effective or shall be reinstated,
as the case may be, with respect to an FCN Capital Trust, if at any time any
holder of Trust Securities of such FCN Capital Trust or any Expense
Beneficiary must restore payment of any sums paid under the Trust Securities
of such FCN Capital Trust, under any Expense Obligation, under the FCN
Guarantees in favor of holders of Trust Securities of such FCN Capital Trust
or under this Article Seventeen for any reason whatsoever. Subject to the
terms of this Article Seventeen, the obligations of the Company under this
Article Seventeen are continuing, irrevocable, unconditional and absolute.
Section 17.03. Waiver of Notice.
The Company hereby waives notice of acceptance of the agreements contained
in this Article Seventeen and of any Expense Obligation to which it applies or
may apply, and the Company hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and
all other notices and demands.
Section 17.04. No Impairment.
The obligations, covenants, agreements and duties of the Company under this
Article Seventeen shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by an FCN Capital Trust of all
or any portion of the Expense Obligations or for the performance of any
other obligation under, arising out of, or in connection with, the Expense
Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Expense Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Expense Beneficiaries with respect to the
Expense Obligations or any action on the part of an FCN Capital Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, an FCN
Capital Trust or any of the assets of FCN Capital Trust.
There shall be no obligation of the Expense Beneficiaries to give notice to,
or obtain the consent of, the Company with respect to the happening of any of
the foregoing.
Section 17.05. Enforcement.
An Expense Beneficiary may enforce this Article Seventeen directly against
the Company and the Company waives any right or remedy to require that any
action be brought against the applicable FCN Capital Trust or any other Person
or entity before proceeding against the Company.
Section 17.06. Subrogation.
The Company shall be subrogated to all (if any) rights of any FCN Capital
Trust in respect of any amounts paid to the Expense Beneficiaries by the
Company under this Article Seventeen with respect to such FCN Capital Trust;
provided, however, that the Company shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Article
Seventeen, if, at the time of any such payment, any amounts are due and unpaid
under this Article Seventeen.
Section 17.07. Amendment.
So long as there remains any Expense Beneficiary or any Trust Securities of
an FCN Capital Trust are outstanding, this Article Seventeen shall not be
modified or amended in any manner adverse to such Expense Beneficiary of such
FCN Capital Trust or to the holders of the Trust Securities of such FCN
Capital Trust without the written consent of such Expense Beneficiary or such
holders, as applicable.
65
ARTICLE EIGHTEEN
MISCELLANEOUS
SECTION 18.01. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 18.02. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by an FCN
Capital Trust or a trustee of such trust, if the Institutional Trustee of such
FCN Capital Trust fails to enforce its rights under this Indenture as the
holder of the series of Securities held as the assets of such FCN Capital
Trust, any holder of Preferred Securities of such Capital Trust who has
previously made a written request to the Institutional Trustee to institute
proceedings with respect to the enforcement of such rights may institute legal
proceedings directly against the Company to enforce such Institutional
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default as described in Section
7.01(i) or 7.01(ii) has occurred and is continuing, the Company acknowledges
that a holder of Preferred Securities of such FCN Capital Trust may directly
institute a proceeding against the Company for enforcement of payment to such
holder of the principal of (premium, if any) and (subject to Section 3.07)
interest on the applicable series of Securities having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the applicable series
of Securities.
66
The Chase Manhattan Bank hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
First Chicago NBD Corporation
BY________________________________
Senior Vice President and
Treasurer
Attest:
-------------------------------
Assistant Secretary
The Chase Manhattan Bank, as Trustee
BY________________________________
Vice President
Attest:
-------------------------------
Senior Trust Officer
67
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
.............................
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial
interest in the Securities is being acquired by or on behalf of a United
States person, that such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended and
the regulations thereunder. If the undersigned is a dealer, the undersigned
agrees to obtain a similar certificate from each person entitled to delivery
of any of the above-captioned Securities in bearer form purchased from it;
provided, however, that, if the undersigned has actual knowledge that the
information contained in such a certificate is false, the undersigned will not
deliver a Security in temporary or definitive bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to
the undersigned.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source, and "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the date of delivery of the above-captioned
Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or
a copy thereof to any interested party in such proceedings.
Dated:.................., 19...
[To be dated no earlier than 15 days prior
to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security]
.....................................
(Authorized Signatory)
Name:
Title:
68
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND XXXXX X.X. IN CONNECTION WITH
THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
.............................
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $.......... principal amount of the above-
captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion
of the part submitted herewith for exchange are no longer true and cannot be
relied upon as of the date hereof.
Dated: ................., 19...
[To be dated no earlier than
the Exchange Date]
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By ..................................
69
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
.............................
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert Date],
the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source, and "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will be
paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment
Date to the effect that the beneficial owner of such portion with respect to
which interest is to be paid on such date either is not a United States person
or is a United States person which is a financial institution which has
provided an Internal Revenue Service Form W-9 or is an exempt recipient as
defined in United States Treasury Regulations (S) 1.6049-4(c)(1)(ii). We
undertake to retain certificates received from our member organizations in
connection herewith for four years from the end of the calendar year in which
such certificates are received.
The foregoing reflects any advice received subsequent to the date of any
certificate stating that the statements contained in such certificate are no
longer correct.
Dated: ................., 19...
[To be dated on or after the
relevant Interest Payment
Date]
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By...................................
70
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
.............................
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the temporary
global Security representing the above-captioned Securities and held by you
for our account is beneficially owned by a United States person or, if any
portion thereof held by you for our account is beneficially owned by a United
States person, such United States person is a financial institution within the
meaning of Section 1.165-12(c)(1)(v) of the United States Treasury regulations
which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended and the regulations thereunder, and certifies
that either it has provided an Internal Revenue Service Form W-9 or is an
exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United States
Treasury regulations.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source, and "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the Interest Payment Date on [Insert Date] as to
any such portion of such temporary global Security.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or
a copy thereof to any interested party in such proceedings.
Dated:.................., 19...
[To be dated on or after the
15th day before the relevant
Interest Payment Date]
[Name of Account
Holder]
.....................................
(Authorized Signatory)
Name:
Title:
71
