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BANKAMERICA CORPORATION
TO
MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA,
Trustee
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Indenture
Dated as of November 1, 1991
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Subordinated Debt Securities
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BANKAMERICA CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of November 1, 1991
Trust Indenture Act Section Indenture Section
ss. 310(a)(1) ............................................... 609
(a)(2) ............................................... 609
(a)(3) ............................................... Not Applicable
(a)(4) ............................................... Not Applicable
(a)(5) ............................................... 609
(b) .................................................. 608
610
(c) .................................................. Not Applicable
ss. 311(a) .................................................. 613(a)
(b) .................................................. 613(b)
(b)(2) ............................................... 703(a)(3)
703(b)
ss. 312(a) .................................................. 701
702(a)
(b) .................................................. 702(b)
(c) .................................................. 702(c)
ss. 313(a) .................................................. 703(a)
(b) .................................................. 703(b)
(c) .................................................. 703(c)
(d) .................................................. 703(d)
ss. 314(a) .................................................. 704, 1004
(b) .................................................. Not Applicable
(c)(1) ............................................... 102
(c)(2) ............................................... 102
(c)(3) ............................................... Not Applicable
(d) .................................................. Not Applicable
(e) .................................................. 102
ss. 315(a) .................................................. 601(a)
601(c)
(b) .................................................. 602
703(a)(7)
(c) .................................................. 601(b)
(d) .................................................. 601(c)
(d)(1) ............................................... 601(a)
(d)(2) ............................................... 601(c)(2)
(d)(3) ............................................... 601(c)(3)
(e) .................................................. 514
ss. 316(a) .................................................. 101
(a)(1)(A) ............................................ 104(h),502
512
(a)(1)(B) ............................................ 104(h),513
(a)(2) ............................................... Not Applicable
(b) .................................................. 508
(c) .................................................. 104(h)
ss. 317(a)(1) ............................................... 503
(a)(2) ............................................... 504
(b) .................................................. 1003
ss. 318(a) .................................................. 107
(c) .................................................. 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
Page
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PARTIES ................................................................. 1
RECITALS ................................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act......................................................... 1
Affiliate; control; controlling; controlled ................ 1
Authorized Newspaper ....................................... 2
Bank ....................................................... 2
Bearer Security ............................................ 2
Board of Directors ......................................... 2
Board Resolution ........................................... 2
Business Day ............................................... 2
Capital Exchange Agent ..................................... 2
Capital Exchange Date ...................................... 2
Capital Exchange Price ..................................... 2
Capital Securities ......................................... 2
Capital Security Election Form ............................. 2
CEDEL; CEDEL S.A ........................................... 2
Closing Price .............................................. 2
Commission ................................................. 2
Common Stock ............................................... 2
Company .................................................... 3
Company Request; Company Order ............................. 3
Controlled Subsidiary ...................................... 3
Conversion Price ........................................... 3
Convertible Securities ..................................... 3
Corporate Trust Office ..................................... 3
Corporation ................................................ 3
Coupon ..................................................... 3
Debt Securities ............................................ 3
Defaulted Interest ......................................... 3
Depositary ................................................. 3
Designated Currency ........................................ 3
Dollar ..................................................... 3
ECU ........................................................ 3
Eligible Instruments ....................................... 3
Euroclear .................................................. 3
European Communities ....................................... 3
Event of Default ........................................... 3
Exchange Rate .............................................. 4
Exchange Rate Agent ........................................ 4
Exchange Rate Officer's Certificate ........................ 4
Foreign Currency ........................................... 4
Global Exchange Agent ...................................... 4
Global Exchange Date ....................................... 4
Global Security ............................................ 4
Holder ..................................................... 4
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Indenture .................................................. 4
Interest ................................................... 4
Interest Payment Date ...................................... 4
Market Value ............................................... 4
Maturity ................................................... 4
Officers' Certificate ...................................... 4
Opinion of Counsel ......................................... 4
Optional Securities Fund ................................... 4
Original Issue Discount Security ........................... 5
Outstanding ................................................ 5
Paying Agent ............................................... 5
Perpetual Preferred Stock .................................. 5
Person ..................................................... 5
Place of Capital Exchange .................................. 5
Place of Payment ........................................... 5
Predecessor Security ....................................... 5
Primary Federal Regulator .................................. 5
Redemption Date ............................................ 6
Redemption Price ........................................... 6
Registered Security ........................................ 6
Regular Record Date ........................................ 6
Remarketing Entity ......................................... 6
Repayment Date ............................................. 6
Repayment Price ............................................ 6
Responsible Officer ........................................ 6
Rights ..................................................... 6
Secondary Offering ......................................... 6
Securities Fund ............................................ 6
Security Register, Security Registrar ...................... 6
Senior Debt ................................................ 6
Special Record Date ........................................ 6
Stated Maturity ............................................ 6
Trust Indenture Act ........................................ 6
Trustee .................................................... 0
Xxxxxx Xxxxxx .............................................. 0
Xxxxxx Xxxxxx Alien ........................................ 7
U.S. Government Obligations ................................ 7
Voting Stock ............................................... 7
SECTION 102. Compliance Certificates and Opinions ....................... 7
SECTION 103. Form of Documents Delivered to Trustee ..................... 7
SECTION 104. Acts of Holders ............................................ 8
SECTION 105. Notices, etc., to Trustee and Company ...................... 9
SECTION 106. Notice to Holders; Waiver .................................. 9
SECTION 107. Conflict with Trust Indenture Act .......................... 10
SECTION 108. Effect of Headings and Table of Contents ................... 10
SECTION 109. Successors and Assigns ..................................... 10
SECTION 110. Separability Clause ........................................ 10
SECTION 111. Benefits of Indenture ...................................... 10
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SECTION 112. Governing Law .............................................. 10
SECTION 113. Legal Holidays ............................................. 10
SECTION 114. Counterparts ............................................... 10
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally ............................................ 11
SECTION 202. Form of Trustee's Certificate of Authentication ............ 11
SECTION 203. Debt Securities in Global Form ............................. 11
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series ....................... 12
SECTION 302. Denominations .............................................. 14
SECTION 303. Execution, Authentication, Delivery and Dating ............. 14
SECTION 304. Temporary Debt Securities .................................. 16
SECTION 305. Registration; Registration of Transfer and Exchange ........ 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities ...... 20
SECTION 307. Payment of Interest; Interest Rights Preserved ............. 21
SECTION 308. Persons Deemed Owners ...................................... 22
SECTION 309. Cancellation ............................................... 23
SECTION 310. Computation of Interest .................................... 23
SECTION 311. Certification by a Person Entitled to Delivery of a
Bearer Security .......................................... 23
SECTION 312. Judgments .................................................. 23
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .................... 24
SECTION 402. Application of Trust Money and Eligible Instruments ........ 25
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .......................................... 25
SECTION 502. Acceleration of Maturity; Rescission and Annulment ......... 25
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee ............................................... 26
SECTION 504. Trustee May File Proofs of Claim ........................... 27
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons .................................... 27
SECTION 506. Application of Money Collected ............................. 28
SECTiON 507. Limitation on Suits ........................................ 28
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and To Exchange Debt
Securities for Capital Securities ........................ 29
SECTION 509. Restoration of Rights and Remedies ......................... 29
SECTION 510. Rights and Remedies Cumulative ............................. 29
SECTION 511. Delay or Omission Not Waiver ............................... 29
SECTION 512. Control by Holders of Debt Securities ...................... 29
SECTION 513. Waiver of Past Defaults .................................... 29
SECTION 514. Undertaking for Costs ...................................... 30
SECTION 515. Waiver of Stay or Extension Laws ........................... 30
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities ........................ 30
SECTION 602. Notice of Defaults ......................................... 31
SECTION 603. Certain Rights of Trustee .................................. 31
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities 32
SECTION 605. May Hold Debt Securities or Coupons ........................ 32
SECTION 606. Money Held in Trust ........................................ 32
SECTION 607. Compensation and Reimbursement ............................. 32
SECTION 608. Disqualification; Conflicting Interests .................... 33
(a) Elimination of Conflicting Interest or Resignation .... 33
(b) Notice of Failure to Eliminate Conflicting Interest
or Resign ........................................... 33
(c) "Conflicting Interest" Defined ........................ 33
(d) Definitions of Certain Terms Used in this Section ..... 35
(e) Calculation of Percentages of Securities .............. 36
(f) Stay of Trustee's Duty to Resign ...................... 37
(g) Amendments to Trust Indenture Act ..................... 37
SECTION 609. Corporate Trustee Required; Eligibility .................... 37
SECTION 610. Resignation and Removal; Appointment of Successor .......... 37
SECTION 611. Acceptance of Appointment by Successor ..................... 38
SECTION 612. Merger, Conversion, Consolidation or Succession to Business 39
SECTION 613. Preferential Collection of Claims Against Company .......... 39
(a) Segregation and Apportionment of Certain Collections
by Trustee; Certain Exceptions ...................... 39
(b) Certain Creditor Relationships Excluded from
Segregation and Apportionment ....................... 41
(c) Definitions of Certain Terms Used in this Section ..... 41
SECTION 614. Authenticating Agent ....................................... 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders .. 43
SECTION 702. Preservation of Information; Communications to Holders ..... 43
SECTION 703. Reports by Trustee ......................................... 44
SECTION 704. Reports by Company ......................................... 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms ....... 46
SECTION 802. Successor Corporation Substituted .......................... 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders ......... 46
SECTION 902. Supplemental Indentures with Consent of Holders ............ 47
SECTION 903. Execution of Supplemental Indentures ....................... 48
SECTION 904. Effect of Supplemental Indentures .......................... 48
SECTION 905. Conformity with Trust Indenture Act ........................ 49
SECTION 906. Reference in Debt Securities to Supplemental Indentures .... 49
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest ................ 49
SECTION 1002. Maintenance of Office or Agency ........................... 49
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust .... 50
SECTION 1004. Officers' Certificate as to Default ....................... 51
SECTION 1005. Limitation on Disposition of Voting Stock of, and Merger
and Sale of Assets by, the Bank ........................ 51
SECTION 1006. Payment of Additional Amounts ............................. 51
SECTION 1007. Waiver of Certain Covenants ............................... 52
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article .................................. 52
SECTION 1102. Election to Redeem; Notice to Trustee ..................... 52
SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed .... 52
SECTION 1104. Notice of Redemption ...................................... 53
SECTION 1105. Deposit of Redemption Price ............................... 53
SECTION 1106. Debt Securities Payable on Redemption Date ................ 53
SECTION 1107. Debt Securities Redeemed in Part .......................... 54
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article .................................. 54
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt Securities 54
SECTION 1203. Redemption of Debt Securities for Sinking Fund ............ 55
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article .................................. 55
SECTION 1302. Repayment of Debt Securities .............................. 55
SECTION 1303. Exercise of Option; Notice ................................ 55
SECTION 1304. Election of Repayment by Remarketing Entities ............. 56
SECTION 1305. Debt Securities Payable on the Repayment Date ............. 56
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article .................................. 57
SECTION 1402. Exchange of Capital Securities for Debt Securities at
Stated Maturity ....................................... 57
SECTION 1403. Right of Early Exchange of Capital Securities for Debt
Securities ............................................ 57
SECTION 1404. Notices of Exchange ....................................... 58
SECTION 1405. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities ...................... 59
SECTION 1406. Election to Exchange ...................................... 60
SECTION 1407. Deposit of Capital Exchange Price ......................... 60
SECTION 1408. Debt Securities Due on Capital Exchange Date; Debt
Securities Exchanged in Part .......................... 60
SECTION 1409. Form of Capital Security Election Form .................... 61
SECTION 1410. Fractional Capital Securities ............................. 62
SECTION 1411. Company to Obtain Govcrnmental and Regulatory Approvals ... 62
SECTION 1412. Taxes on Exchange ......................................... 62
SECTION 1413. Covenants as to Capital Securities and Secondary Offering . 62
SECTION 1414. Provision in Case of Consolidation, Merger or Transfer
of Assets ............................................. 63
SECTION 1415. Responsibility of Trustee ................................. 63
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SECTION 1416. Revocation of Obligation to Exchange Capital
Securities for Debt Securities ......................... 63
SECTION 1417. Optional Securities Funds ................................. 63
ARTICLE FIFTEEN
SECURITIES FUNDS
SECTION 1501. Creation of Securities Funds .............................. 64
SECTION 1502. Designations of Securities Funds .......................... 64
SECTION 1503. Covenant of the Company to Obtain Securities Funds ........ 65
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called ................. 65
SECTION 1602. Call, Notice and Place of Meetings ........................ 65
SECTION 1603. Persons Entitled to Vote at Meetings ...................... 66
SECTION 1604. Quorum; Action ............................................ 66
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings ............................................ 67
SECTION 1606. Counting Votes and Recording Action of Meetings ........... 67
ARTICLE SEVENTEEN
DEFEASANCE
SECTION 1701. Termination of Company's Obligations ...................... 68
SECTION 1702. Repayment to Company ...................................... 68
SECTION 1703. Indemnity for Eligible Instruments ........................ 69
ARTICLE EIGHTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1801. Debt Securities Subordinate to Senior Debt ................ 69
SECTION 1802. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Debt;
Trustee Not Fiduciary to Holders of Senior Debt ....... 70
SECTION 1803. Payment Permitted If No Default ........................... 71
SECTION 1804. Trustee Not Charged With Knowledge of Prohibition ......... 71
SECTION 1805. Trustee to Effectuate Subordination ....................... 71
SECTION 1806. Rights of Trustee as Holder of Senior Debt ................ 71
SECTION 1807. Article Applicable to Paying Agents ....................... 72
SECTION 1808. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt .............. 72
ARTICLE NINETEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1901. Applicability of Article .................................. 72
SECTION 1902. Right to Convert .......................................... 72
SECTION 1903. Exercise of Conversion Privilege; Delivery of Common
Stock on Conversion; No Adjustment for Interest
or Dividends ......................................... 72
SECTION 1904. Cash Payments in Lieu of Fractional Shares ................ 73
SECTION 1905. Conversion Price .......................................... 74
SECTION 1906. Adjustment to Conversion Price ............................ 74
SECTION 1907. Effect of Reclassification, Consolidation, Merger or Sale . 76
SECTION 1908. Taxes on Shares Issued 77
SECTION 1909. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock ................. 77
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SECTION 1910. Responsibility of Trustee ................................. 77
SECTION 1911. Notice to Holders Prior to Certain Actions ................ 77
SECTION 1912. Covenant to Reserve Shares ................................ 78
TESTIMONIUM ............................................................. 78
SIGNATURES AND SEALS .................................................... 78
ACKNOWLEDGEMENTS ........................................................ 79
EXHIBIT A ............................................................... A-1
EXHIBIT B ............................................................... B-1
INDENTURE (the "Indenture") dated as of November 1, 1991, between
BANKAMERICA CORPORATION, a Delaware corporation (hereinafter called the
"Company"), having its principal place of business at Bank of America Center,
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and Manufacturers Hanover
Trust Company of California, a California corporation (hereinafter called the
"Trustee"), having its Corporate Trust Office at 00 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds or other evidences of indebtedness (herein called the
"Debt Securities"), to be issued in one or more series.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act or by Commission rule or regulation under the Trust Indenture Act, either
directly or by reference therein, as in force at the date as of which this
instrument was executed, except as provided in Section 905, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the
United States at the date of such computation; and
(4) the words "herein", "hereof' and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bank" means Bank of America National Trust and Savings Association, a
national banking association, and any successors to any substantial part of the
present business thereof.
"Bearer Security" means any Debt Security established pursuant to Section
201 which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or Place of
Capital Exchange, means any day which is not a Saturday or Sunday and which is
not a legal holiday or a day on which banking institutions or trust companies in
that Place of Payment or Place of Capital Exchange are authorized or obligated
by law or executive order to close.
"Capital Exchange Agent" means the Person or Persons appointed by the
Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fourteen.
"Capital Exchange Date", when used with respect to the Debt Securities of
any series, means any date on which such Debt Securities are to be exchanged for
Capital Securities pursuant to this Indenture.
"Capital Exchange Price", when used with respect to any Debt Security of
any series to be exchanged for Capital Securities, means the amount of Capital
Securities for which such Debt Security is to be exchanged pursuant to this
Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the Company which
consist of any of the following: (i) Common Stock (ii) Perpetual Preferred Stock
or (iii) securities which at the date of issuance may be issued in exchange for,
or the proceeds from the sale of which may be designated as Securities Funds or
Optional Securities Funds for the payment of the principal of, "mandatory
convertible securities" under applicable regulations of the Primary Federal
Regulator. Capital Securities may have such terms, rights and preferences as may
be determined by the Company.
"Capital Security Election Form" means a form substantially in the form
included in Section 1409.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A.
"Closing Price" has the meaning specified in Section 1906(d).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Stock" means when used with reference to the capital stock of the
Company, the class of stock which, at the date of execution of this Indenture,
is designated as common stock of the Company and stock of any class or classes
into which such common stock or any such other class may thereafter be changed
or reclassified. In case by reason of the operation of Article Nineteen, the
Convertible Securities shall be convertible into any other shares or other
securities or property of the Company or any other corporation, any reference in
this Indenture to the
3
conversion of Convertible Securities pursuant to Article Nineteen shall be
deemed to refer to and include conversion of Convertible Securities into such
other shares or other securities or property.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board, the
Chairman of the Executive Committee of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, a Vice
Chairman or a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company whether or
not designated by a number or word or words added before or after the title
"Vice President"), and by the Treasurer, an Assistant Treasurer, Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Controlled Subsidiary" means any corporation more than 80% of the
outstanding shares of Voting Stock, except for directors' qualifying shares, of
which shall at the time be owned directly by the Company.
"Conversion Price" has the meaning specified in Section 1904.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered.
The term "corporation" includes corporations, associations, companies and
business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Eligible Instruments" means monetary assets, money market instruments and
securities that are payable in Dollars only and essentially risk free as to
collection of principal and interest, including U.S. Government Obligations.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
4
"Exchange Rate" shall have the meaning specified as contemplated in Section
301.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, the Chairman of the Executive Committee of the Board, a
Vice Chairman of the Board, the President, the Treasurer or any Assistant
Treasurer of the Company or the Exchange Rate Agent appointed pursuant to
Section 301 and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or a part of
a series of Debt Securities in accordance with Section 303.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity of an instalment of interest on such Debt Security.
"Market Value" of any Capital Securities issued on any Capital Exchange
Date for Debt Securities of any series shall be the sale price of such Capital
Securities which are sold in the Secondary Offering for the Debt Securities of
such series. In the event no such Secondary Offering takes place, the Market
Value of such Capital Securities shall be the fair value of such Capital
Securities on such Capital Exchange Date for Debt Securities of such series as
determined by three independent nationally recognized investment banking firms
selected by the Company.
"Maturity", when used with respect to any Debt Security, means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or exchange, repayment at the option of the
Holder or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chairman of the Executive Committee of the Board, a Vice Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, a Vice Chairman or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be counsel for the Company, or
who may be other counsel acceptable to the Trustee, which is delivered to the
Trustee.
"Optional Securities Fund" means a fund pursuant to which the proceeds of
sales of Capital Securities may be designated on the books of the Company for
the payment of any of the principal of any Debt Security pursuant to Section
1417 of this Indenture.
5
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Debt Securities means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Debt Securities and any
coupons appertaining thereto; provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Perpetual Preferred Stock" means any stock of any class of the Company
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Perpetual Preferred Stock of another class or series or with
the proceeds of the sale of Common Stock or Perpetual Preferred Stock.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Capital Exchange", when used with respect to Debt Securities of
any series, means any place where the Debt Securities of such series are
exchangeable for Capital Securities as specified pursuant to Section 301.
"Place of Payment", when used with respect to the Debt Securities of any
series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated
by Section 301.
"Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security, and, for the purposes of this definition, any
Debt Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States federal
regulator of the Company (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution.
6
"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be repaid
upon exercise of option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Department (or any successor group) of the
Trustee, including any vice president, assistant vice president, trust officer,
assistant secretary or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, or to whom any corporate trust matter is
referred at the Trustee's Corporate Trust Office because of such officer's
knowledge of and familiarity with the particular subject.
"Rights" has the meaning specified in Section 1906(c).
"Secondary Offering", when used with respect to the Debt Securities of any
series, means the offering and sale by the Company of Capital Securities for the
account of Holders of Debt Securities of such series who elect to receive cash
and not Capital Securities on the Capital Exchange Date for such series.
"Securities Fund" means a fund pursuant to which the proceeds of sales of
Capital Securities are designated on the books of the Company for the payment of
any principal of any Debt Security pursuant to the provisions of Section 1501.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" means any obligation of the Company to its creditors whether
now outstanding or subsequently incurred other than (i) any obligation as to
which, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligation is not Senior Debt
and (ii) obligations evidenced by the Debt Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment of interest is due and
payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Debt Securities
of any series shall mean the Trustee with respect to Debt Securities of that
series.
7
"United States" means the United States of America (including the District
of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States.
"Voting Stock", as applied to the stock (or the equivalent thereof) of any
corporation, means stock (or the equivalent thereof) of any class or classes,
however designated, having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock (or such equivalent)
having such power only by reason of the happening of a contingency.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 704(4)) shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such
8
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters is
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Debt Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Debt Securities
duly called and held in accordance with the provisions of Article Sixteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Debt Security shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section. The record of any meeting of
Holders of Debt Securities shall be proved in the manner provided in Section
1606.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in 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.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debt Security shall bind every future holder
of the same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, suffered or omitted by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Debt
Security.
(g) For purposes of determining the principal amount of Outstanding Debt
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
9
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company by Holders of
the required aggregate principal amount of the Outstanding Debt Securities of
such series (or, if there is no such rate on such date, such rate on the date
determined as specified as contemplated in Section 301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided), if made,
given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Secretary at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not earlier than
the earliest date and not later than the latest date prescribed for the giving
of such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or impracticable to mail
notice of any event to Holders when said notice is required to be given pursuant
to any provision of this Indenture or of the Debt Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice. In any case where notice to Holders of
Registered Securities is to be given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
~Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as
10
provided above, then such method of publication or notification as shall be made
with the approval of the Trustee shall constitute a sufficient publication of
such notice. Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of any notice mailed to Holders of Registered Securities
as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such 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.
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed by and
construed in accordance with the laws of the State of California.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Capital Exchange Date or Stated Maturity of any Debt Security shall not be
a Business Day at any Place of Payment or Place of Capital Exchange, then
(notwithstanding any other provision of this Indenture or of the Debt Securities
or coupons) payment of interest or principal (and premium, if any) or exchange
of Debt Securities for Capital Securities or cash need not be made at such Place
of Payment or Place of Capital Exchange on such date, but may be made on the
next succeeding Business Day at such Place of Payment or Place of Capital
Exchange with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date, Capital Exchange Date or Stated Maturity, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Repayment Date, Capital Exchange Date or Stated Maturity,
as the case may be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
11
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially the form (including
temporary or permanent global form) as shall be established in or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with the rules of any securities exchange,
or as may, consistently herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt
Securities or coupons. If the form of Debt Securities of any series or coupons
(including any such Global Security) is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 or the authentication and delivery of such Debt
Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt Securities
in bearer form, other than Debt Securities in temporary or permanent global
form, shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY OF
CALIFORNIA
as Trustee
By
-------------------------------------
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(12) of Section 301 and the provisions of Section 302, such Global Security
shall represent such of the outstanding Debt Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Debt Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to any
Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of Debt
Securities represented thereby, together with the written statement contemplated
by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
12
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall distinguish
the Debt Securities of the series from all other Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 906, 1107, 1303,
1408 or 1903 and except for any Debt Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal and premium, if any, of the
Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the series
shall bear interest, or the method or methods by which such rate or rates may be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the Regular
Record Date for the interest payable on any Registered Security on any Interest
Payment Date and the circumstances, if any, in which the Company may defer
interest payments;
(5) the place or places where, subject to the provisions of Section 1002,
the principal of (and premium, if any) and interest on Debt Securities of the
series shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Debt Securities of the series may be
surrendered for exchange and notices and demands to or upon the Company in
respect of the Debt Securities of the series and this Indenture may be served
and where notices to Holders pursuant to Section 106 will be published;
(6) if applicable, the period or periods within which or the date or dates
on which, the price or prices at which and the terms and conditions upon which
Debt Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) if applicable, the place or places at which, the period or periods
within which, the price or prices at which and the terms and conditions upon
which Debt Securities shall be exchangeable for Capital Securities of the
Company, which terms and conditions shall not be inconsistent with Article
Fourteen;
(8) any covenant or option of the Company to create a Securities Fund for
the repayment of the Debt Securities and the terms and conditions of such
Securities Fund, which terms and conditions shall not be inconsistent with
Article Fifteen;
(9) the obligation, if any, of the Company to redeem, repay or purchase
Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which Debt
Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(10) whether Debt Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Debt Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if other
than the date of original issuance of the first Debt Security of such series of
like tenor and term to be issued;
(11) whether the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case, the
Depositary and Global Exchange Agent for such Global Security
13
or Securities, whether such global form shall be permanent or temporary and, if
applicable, the Global Exchange Date;
(12) if Debt Securities of the series are to be issuable initially in the
form of a temporary Global Security, the circumstances under which the temporary
Global Security can be exchanged for definitive Debt Securities and whether the
definitive Debt Securities will be Registered and/or Bearer Securities and will
be in global form and whether interest in respect of any portion of such Global
Security payable in respect of an Interest Payment Date prior to the Global
Exchange Date shall be paid to any clearing organization with respect to a
portion of such Global Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be credited to
the Persons entitled to interest payable on such Interest Payment Date if other
than as provided in this Article Three;
(13) whether, and under what conditions, additional amounts will be payable
to Holders of Debt Securities of the series pursuant to Section 1006;
(14) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of such
series, shall be issuable, if other than the denomination of $5,000;
(15) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(16) the currency or currencies of denomination of the Debt Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the ECU, and, if any such currency of
denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;
(17) the currency or currencies in which payment of the principal of (and
premium, if any) and interest on the Debt Securities will be made, the currency
or currencies, if any, in which payment of the principal of (and premium, if
any) or the interest on Registered Securities, at the election of each of the
Holders thereof, may also be payable and the periods within which and the terms
and conditions upon which such election is to be made and the Exchange Rate and
Exchange Rate Agent;
(18) if the amount of payments of principal of (and premium, if any) or
interest on the Debt Securities of the series may be determined with reference
to an index based on a currency or currencies other than that in which the Debt
Securities are denominated or designated to be payable, the manner in which such
amounts shall be determined;
(19) if payments of principal of (and premium, if any) or interest on the
Debt Securities of the series are to be made in a Foreign Currency other than
the currency in which such Debt Securities are denominated, the manner in which
the Exchange Rate with respect to such payments shall be determined or if the
Exchange Rate is to be determined otherwise than as provided in Section 101;
(20) any Events of Default with respect to Debt Securities of such series,
if not set forth herein;
(21) the terms and conditions, if any, pursuant to which the Company's
obligations under this Indenture may be terminated through the deposit of money
or Eligible Instruments as provided in Articles Four or Seventeen;
(22) the Person or Persons who shall be Security Registrar for the Debt
Securities of such series if other than the Trustee, and the place or places
where the Security Register for such series shall be maintained and the Person
or Persons who will be the initial Paying Agent or Agents, if other than the
Trustee;
(23) whether the Debt Securities of the series are Convertible Securities
and the terms related thereto including the Conversion Price and the date on
which the right to convert expires; and
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(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various times,
with different dates on which the principal or any 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 or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, the Chairman of the Executive Committee of the Board, a
Vice Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, a Vice Chairman or a Vice President, and by its
Treasurer or one of its Assistant Treasurers or its Secretary or one of its
Assistant Secretaries under its corporate seal reproduced thereon. The signature
of any of these officers on the Debt Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
Debt Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or coupons of any series or did not hold such offices at the date of
such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, Debt Securities of any series may be executed by the Company and
delivered to the Trustee for authentication, and, except as otherwise provided
in this Article Three, shall thereupon be authenticated and delivered by the
Trustee upon Company Order, without any further action by the Company provided
however, that, in connection with its original issuance, a Bearer Security may
be delivered only outside the United States and, except in the case of a
temporary Global Security, only if the Company or its agent shall have received
the certification required pursuant to Sections 304(b) (iii) and (iv), unless
such certification shall have been provided earlier pursuant to Section 304(b)
(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
of the Company, may be electronically transmitted, and may provide instructions
as to registration of holders, principal amounts, rates of interest, maturity
dates and other matters contemplated by such Board Resolution and Officers'
Certificate or supplemental indenture to be so instructed in respect thereof.
Before authorizing and delivering the first Debt Securities of any series (and
upon request of the Trustee thereafter), the Company shall deliver to the
Trustee (i) the certificates called for under Sections 201 and 301 hereof and
(ii) an Opinion of Counsel described in the next sentence.
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In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of the
Debt Securities of such series and coupons, if any, pursuant to Sections
201 and 301 and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Debt Securities have been
complied with, that no Event of Default with respect to any series of Debt
Securities has occurred and is continuing and that the issuance of such
Debt Securities is not and will not result in an Event of Default or an
event or condition which, upon the giving of notice (or the acquisition of
knowledge) or the lapse of time or both, would become an Event of Default,
and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any,
has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if any,
have been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 301 in conformity with
the provisions of this Indenture:
(C) that such Debt Securities and coupons, if any, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and the application of general principles of equity, except
that where the Debt Securities of any series are to be exchanged for
Capital Securities or paid from the Securities Fund, the issuance of
Capital Securities will require further action by the Board of
Directors;
(D) that the Company has the corporate power to issue such Debt
Securities and coupons, if any, and has duly taken all necessary
corporate action with respect to such issuance;
(E) that the issuance of such Debt Securities and coupons, if
any, will not contravene the charter or by-laws of the Company or
result in any violation of any of the terms or provisions of any law
or regulation or of any indenture, mortgage or other agreement known
to such counsel by which the Company or any of its subsidiaries is
bound;
(F) that all laws and requirements in respect of the execution
and delivery by the Company of such Debt Securities and coupons, if
any, have been complied with and that authentication and delivery of
such Debt Securities by the Trustee will not violate the terms of the
Indenture; and
(G) such other matters as the Trustee may reasonably request.
(c) If the Company shall establish pursuant to Section 301 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such
series, authenticate and deliver, one or more Global Securities in permanent or
temporary form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instruction.
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(d) The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section 303 if (i) the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or (ii) the
Trustee in good faith by a committee of Responsible Officers shall determine
that such action would be unjustly prejudicial to Holders of Outstanding Debt
Securities or (iii) the issuance of such Debt Securities will adversely affect
the Trustee's own rights, duties or immunities under the Debt Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
(e) If all the Debt Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any series,
the Company may execute, and upon receipt of documents required by Sections 301
and 303, together with a Company Order, the Trustee shall authenticate and
deliver, temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor and terms of the definitive Debt Securities in lieu of which they are
issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt
Securities may determine, as evidenced by their signatures on such Debt
Securities. In the case of Debt Securities of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form, representing
all or any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form, if
temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in a Place
of Payment for such series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Debt Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered
17
Security; and provided, further, that a Bearer Security shall be delivered
in exchange for a Bearer Security only in compliance with the conditions
set forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Debt Securities (the "Global Exchange
Agent"), in an aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the
Global Exchange Date, such temporary Global Security shall be surrendered
by the Depositary to the Global Exchange Agent, to be exchanged, in whole
or from time to time in part, for definitive Debt Securities without charge
and the Trustee or the Global Exchange Agent, if authorized by the Trustee
pursuant to Section 614, shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part of
such temporary Global Security for definitive Debt Securities, the portion
of the principal amount and any interest thereon so exchanged shall be
endorsed by the Global Exchange Agent on a schedule to such temporary
Global Security, whereupon the principal amount and interest payable with
respect to such temporary Global Security shall be reduced for all purposes
by the amount so exchanged and endorsed. The definitive Debt Securities to
be delivered in exchange for any such temporary Global Security shall be in
bearer form, registered form, global registered form or global bearer form,
or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, in the case of the
exchange of the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation by
the Depositary, such temporary Global Security shall be accompanied by a
certificate signed by Euroclear as to the portion of such temporary Global
Security held for its account then to be exchanged and a certificate signed
by CEDEL S.A. as to the portion of such temporary Global Security held for
its account then to be exchanged, each in the form set forth in Exhibit B
to this Indenture, unless such certificate(s) shall have been provided
earlier pursuant to Section 304(b)(v) hereof; and provided, further, that
definitive Bearer Securities (including a definitive global Bearer
Security) shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a series
in a temporary Global Security shall be exchanged for definitive Debt
Securities of the same series and of like tenor and terms following the
Global Exchange Date when the account holder instructs Euroclear or CEDEL
S.A., as the case may be, to request such exchange on such account holder's
behalf and in the case of the exchange of the temporary Global Security for
definitive Bearer Securities (including a definitive Global Bearer
Security), unless such certificate(s) shall have been earlier provided
pursuant to Section 304(b)(v) hereof, the account holder delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form set
forth in Exhibit A-l and, if applicable, A-2 to this Indenture, dated no
earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and CEDEL S.A. Definitive
Debt Securities in bearer form to be delivered in exchange for any portion
of a temporary Global Security shall be delivered only outside the United
States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same
series
18
and of like tenor and terms authenticated and delivered hereunder, except
that interest payable on a temporary Global Security on an Interest Payment
Date shall be payable to Euroclear and CEDEL S.A. on such Interest Payment
Date only if there has been delivery by Euroclear and CEDEL S.A., to the
Global Exchange Agent of a certificate or certificates in the form set
forth in Exhibit B to this Indenture dated no earlier than the first
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture dated no earlier than the first Interest
Payment Date. Any interest so received by Euroclear and CEDEL S.A., and not
paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such
Interest Payment Date shall repay such interest to the Company in
accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 305
and Section 1002, with respect to the Debt Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Debt Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such Debt
Securities and transfers and exchanges of such Debt Securities as herein
provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Bearer Securities may not be delivered in exchange for
Registered Securities.
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment, provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor and terms after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
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If at any time the Depositary for the Debt Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Debt Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 303(h), the
Company shall appoint a successor Depositary with respect to the Debt Securities
of such series. If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 301(11) shall no longer be effective with respect to the Debt
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Debt Securities of any series issued in the form of one or 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 Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt Security or
Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt 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 unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Registered Securities to the persons in whose names such Debt
Securities are so registered. The Trustee shall deliver Bearer Securities issued
in exchange for a Global Security pursuant to this Section to the persons, and
in such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto and provided further that delivery
of a Bearer Security
20
shall occur only outside the United States; and provided further that no
definitive Bearer Security will be issued if the Company has reason to know that
any such certificate is false.
All Debt Securities issued upon any registration of transfer or exchange of
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Debt Securities of any particular series to be redeemed or exchanged
for Capital Securities for a period of fifteen days preceding the first
publication of the relevant notice of redemption or, if Registered Securities
are outstanding and there is no publication, the mailing of the relevant notice
of redemption or exchange, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption or exchange in whole or in part,
except the unredeemed or unexchanged portion of such Registered Security being
redeemed or exchanged in part, or (iii) to exchange any Bearer Security so
selected for redemption or exchange except that such a Bearer Security may be
exchanged for a Registered Security of like tenor and terms of that series,
provided that such Registered Security shall be simultaneously surrendered for
redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a mutilated
coupon appertaining to it is surrendered to a Paying Agent outside the United
States designated by the Company, or, in the case of any Registered Security, to
the Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or coupon,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice to the Company and the Trustee that such Debt Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains; provided, however, that any such
new Bearer Security will be delivered only in compliance with the conditions set
forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon provided; however, that payment of principal of (and premium, if any)
and any interest on Bearer
21
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States; and provided, further,
that, with respect to any such coupons, interest represented thereby (but not
any additional amounts payable as provided in Section 1006), shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupon under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and printing expenses)
connected therewith.
Every new Debt Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Debt Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that series and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not less than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holder
of such Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money and/or Eligible Instruments when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this
22
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements satisfactory to
the Trustee with respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series held by, the
Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Subject to the limitations set forth in Section 1002, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive 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 1002.
If any Registered Security is exchanged for Capital Securities after any
record date and on or prior to the next succeeding Interest Payment Date (other
than any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be paid by
the Company on such Interest Payment Date notwithstanding such exchange, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Debt Security is registered at the close
of business on such record date.
If any Bearer Security is exchanged for Capital Securities after any record
date and on or prior to the next succeeding Interest Payment Date (other than
any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid by the
Company pursuant to such procedures as may be satisfactory to the Trustee.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and
23
premium, if any) and (subject to Section 307) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities, all
Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture or a Debt Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt Securities
of any series that, to the fullest extent possible under applicable law and
except as may otherwise be specified as contemplated in Section 301, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Debt Securities of any series and any appurtenant coupons in
a Foreign Currency, composite currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 301 is of the essence and agrees that
judgments in respect of such Debt Securities shall be given in the Designated
Currency;(b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such Debt
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment;(c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such
24
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Debt Securities herein expressly provided for and rights to receive payments of
principal and interest thereon and any right to receive additional amounts, as
provided in Section 1006) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and delivered and
all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has
been waived as provided in Xxxxxxx 000, (xx) Debt Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Xxxxxxx 000, (xxx) coupons appertaining to Bearer
Securities called for redemption or surrendered for repayment and maturing
after the relevant Redemption Date or Repayment Date, as appropriate,
surrender of which has been waived as provided in Section 1106 or 1303 and
(iv) Debt Securities and coupons for whose payment money and/or Eligible
Instruments have theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee cancelled or for cancellation; or
(B) all such Debt Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by
the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of Debt Securities) will provide money in such
amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay and discharge
the entire indebtedness on such Debt Securities and coupons of such series
for principal (and premium, if any) and interest, and any mandatory sinking
fund, repayment or analogous payments thereon, on the scheduled due dates
therefor to the date of such deposit (in the case of Debt Securities and
coupons which have become due and payable) or to the Stated Maturity or
Redemption Date, if any, and all Repayment Dates (in the case of Debt
Securities repayable at the option of the Holders thereof); provided,
however, that in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a successor statute is filed with respect to the
Company within 91 days after the deposit, the obligations of the Company
under the Indenture with respect to the Debt Securities of such series
shall not be deemed terminated or discharged, and in such event the Trustee
shall be required to return the deposited money and Eligible Instruments to
the Company;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
25
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sections 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money and Eligible Instruments.
Subject to the provisions of the last paragraph of Section 1003, all money
and Eligible Instruments deposited with the Trustee pursuant to Section 401
shall be held in trust and such money and the principal and interest received on
such Eligible Instruments shall be applied by it, in accordance with the
provisions of the Debt Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money or Eligible Instruments have been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the entry of a decree or order for relief in respect of the
Company or the Bank by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or the Bank or of any substantial part of the property of
either, or ordering the winding up or liquidation of the affairs of either,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(2) the commencement by the Company or the Bank of a voluntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other similar
law, or the consent by the Company or the Bank to the entry of a decree or
order for relief in an involuntary case under any such law or to the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar official of either of the foregoing or of any
substantial part of the property of either, or the making by the Company or
the Bank of an assignment for the benefit of creditors, or the admission by
the Company or the Bank in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or the Bank in furtherance of any such action; or
(3) any other Event of Default, if any, provided with respect to Debt
Securities of such series specified as contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of Outstanding
Debt Securities of such series may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of and
all accrued but unpaid interest on all the Debt Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by such Holders), and upon any
26
such declaration such principal amount (or specified amount) shall become
immediately due and payable. Upon payment of such amount, all obligations of the
Company in respect of the payment of principal of the Debt Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue instalments of interest on all Debt Securities of
such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue instalments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Debt Securities of such
series have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any instalment of interest on
any Debt Security or any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) defaults in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series, or
(4) defaults in any required designation of funds as Securities Funds,
or
(5) defaults in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of series of Debt Securities other
than such series), and such default or breach continues for a period of 30
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for any overdue principal (and premium, if any)
and interest, sinking fund installment and interest, including the delivery of
any Capital Securities then required to be delivered, and, to the extent that
payment of such interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and, upon overdue instalments of interest, at
the rate or rates
27
prescribed therefor in such Debt Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts (including the delivery of any
Capital Securities then required to be delivered) forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and the
delivery of any Capital Securities required to be delivered and not so
delivered, or, in the case of the failure to deliver Capital Securities, money
equal to the principal amount of the Debt Securities for which the Capital
Securities were to be exchanged, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any other
obligor upon such Debt Securities and coupons and collect the moneys (or money
equal to the principal amount of any Debt Securities for which Capital
Securities were to be exchanged) adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Debt Securities and coupons, wherever situated.
If an Event of Default or a default specified in this Section with respect
to Debt Securities of any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Debt Securities of such series and any related coupons by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Debt Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name,
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as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debt Securities and coupons in respect of
which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of amounts then due and unpaid to the holders
of Senior Debt, to the extent required by Article Eighteen;
THIRD: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Debt Securities and any
coupons, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively. The
Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Exchange Debt Securities for Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Debt Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Debt Security or payment of such coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on the Redemption Date or
the Repayment Date, as the case may be), to have the Debt Securities exchanged
for Capital Securities pursuant to Article Fourteen, if applicable, and to
institute suit for the enforcement of any such payment or exchange, and such
right shall not be impaired without the consent of such Holder, subject however,
to the provisions of Article Eighteen.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
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(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series or coupon affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt Security
or coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Debt Security or the payment of any coupon on or after the respective
Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be) or for the enforcement of the right to
exchange any Debt Securities for Capital Securities as provided in Article
Fourteen.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law whenever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) With respect to Debt Securities of any series, except during the
continuance of an Event of Default with respect to the Debt Securities of such
series,
(1) the Trustee undertakes to perform such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of any
series has occurred and is continuing, the Trustee shall, with respect to the
Debt Securities of such series or any coupons, as the case may be, exercise such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their
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exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Debt Securities of such
series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Debt
Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to Debt Securities of any series the Trustee shall transmit by mail to all
Holders of Debt Securities of such series, entitled to receive reports pursuant
to Section 703(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series or any related coupons or in the
payment of any sinking fund instalment with respect to Debt Securities of such
series or in the exchange of Capital Securities for Debt Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of Debt
Securities of such series. For the purpose of this Section, the term "default'
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the 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;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Debt Securities of such series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
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;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney, other than any
such books or records containing information as to the affairs of the
customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the
extent that such books and records contain information as to any payments
made to such customers in their capacity as Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; no Exchange Rate Agent, Global Exchange Agent, Capital
Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or omission by
any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons or any Capital Securities. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no representations
to the Company's ability or authority to issue Bearer Securities or the
lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other agent of
the Company or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities and coupons, and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its
33
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) 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 or performance of its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Debt Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Debt Securities or any coupons. The claims of the
Trustee under this Section shall not be subject to the provisions of Article
Eighteen.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as defined in this Section) to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the end
of such 90-day period, the Trustee shall either eliminate such conflicting
interest or, except as otherwise provided below in this Section, resign with
respect to the Debt Securities of such series in the manner and with the effect
hereinafter specified in this Article and the Company shall take prompt steps to
have a successor appointed in the manner provided herein.
(b) (1) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit, in the manner and to the extent provided in Section
703(c), to all Holders of Debt Securities of such series notice of such failure.
(2) Subject to the provisions of Section 514, unless the Trustee's duty to
resign is stayed as provided in Subsection (f) of this Section, any Holder who
has been a bona fide Holder of Debt Securities of any series referred to in
Subsection (a) of this Section 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 such Trustee, and the appointment of a successor, if such
Trustee fails, after written request thereof by such Holder to comply with the
provisions of Subsection (a) of this Section.
(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Debt Securities of any series, if a
default (under the terms of this-Indenture), but exclusive of any period of
grace or requirement of notice, has occurred with respect to such Debt
Securities and
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Debt Securities of any series other than that series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Debt Securities
issued under this Indenture, provided that there shall be excluded from the
operation of this paragraph (A) this Indenture with respect to the Debt
Securities of any series other than that series, (B) the indenture between
the Company and the Trustee dated as of June 15, 1984, as supplemented and
amended from time to time, under which the Company's Floating Rate
Subordinated Capital Notes due August 1, 1996, Floating Rate Subordinated
Capital Notes due July, 1996, Subordinated Auction Rate Capital Notes due
May 1999, Floating Rate Subordinated Capital Notes Due October, 1999, 9.75%
Subordinated Notes due July 1, 2000 and 9.70% Subordinated Notes due August
1, 2000 were issued, (C) the indenture between the Company and the Trustee
dated as of September 1, 1990, under which the Company's Medium Term Notes,
Series E, 10% Subordinated Notes Due February 1,2003, 9 3/4% Subordinated
Notes Due February 13, 2001, 9 3/4% Subordinated Notes Due March 1, 2001, 9
1/2% Subordinated Notes Due April 1, 2001 and 9.20% Subordinated Notes Due
May 15, 2003 were issued, and (D) any other indenture or indentures
hereafter qualified under the Trust Indenture Act under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, and
34
(i) this Indenture and such other indenture or indentures (and
all series of securities issuable thereunder) are wholly unsecured and
rank equally, unless the Commission shall have found and declared by
order pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of this
Indenture with respect to the Debt Securities of such series and one
or more other series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debt Securities of such
series and such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Debt Securities of such series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Debt Securities of
such series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner, or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the Debt
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date a default under this Indenture (but
exclusive of any period of grace or requirement of notice) has occurred
upon the Debt Securities of any series or any anniversary of such default
while such default upon such Debt Securities remains outstanding, in the
capacity of executor administrator,
35
testamentary or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this Subsection. As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition, to the
extent that such securities included in such estate do not exceed 25% of
such voting securities or 25% of any such class of security. Promptly after
the dates of any such Event of Default upon the Debt Securities of any
series and annually in each succeeding year that such Event of Default upon
such Debt Securities continues, the Trustee shall make a check of its
holdings of such securities in any of the above-mentioned capacities as of
such dates. If the Company fails to make payments in full of the principal
of (or premium, if any), or interest on, any of the Debt Securities or
coupons when and as the same becomes due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check of
its holdings of such securities in any of the above-mentioned capacities as
of the date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this Subsection; or
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 613(b), the Trustee shall be or shall become a
creditor of the Company.
For purposes of paragraph (1) of this Subsection, and of Sections 512 and
513, the term "series" means a series, class or group of securities issuable
under an indenture or this Indenture pursuant to whose terms holders of one such
series may vote to direct the trustee, or otherwise take action pursuant to a
vote of such holders, separately from holders of another such series; provided,
that "series" shall not include any series of securities issuable under an
indenture (including any series of Debt Securities issuable under this
Indenture) if all such series rank equally and are wholly unsecured.
The specifications of percentages on paragraphs (5) to (9), inclusive, of
this Subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purpose of paragraph (3) or (7)
of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
Clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the Company
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated.
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(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction of management of the affairs of a person.
(5) The term "Company" means any obligor upon the Debt Securities of
any series or any related coupons.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization, whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
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(f) Except in the case of a default in the payment of the principal of or
interest on any Debt Securities of any series, or in the payment of any sinking
or purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that (i) the Event of Default under this Indenture may be cured or
waived during a reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of such Debt Securities. The filing
of such an application shall automatically stay the performance of the duty to
resign until the Commission orders otherwise.
(g) If Section 310(b) of the Trust Indenture Act is amended at any time
after the date of this Indenture to change the circumstances under which a
Trustee shall be deemed to have a conflicting interest with respect to the Debt
Securities of any series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting as Trustee
hereunder with respect to any Outstanding Debt Securities to be deemed to have a
conflicting interest, in which case such changes shall be incorporated herein
only to the extent that such changes (i) would not cause the Trustee to be
deemed to have a conflicting interest or (ii) are required by law.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000, and subject to supervision or examination by Federal or State
authority, provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
may serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) with respect
to the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, unless the Trustee's duty to resign
has been stayed as provided in Section 608(f), or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Debt Securities, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the Debt Securities or one
or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Debt Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Debt Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Debt Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Debt Securities of any series shall
have been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide Holder of
a Debt Security of such series for at least six months may, subject to Section
514, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to
39
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee upon payment of its charges and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt
Securities and coupons and the holders of other indenture securities (as defined
in Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
40
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a voluntary or
involuntary case had been commenced in respect of the Company under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law
upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject however, to the rights, if any, of the Company and its
other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
Subsection (c) of this Section would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, whether such distribution is made in cash, securities, or
other property, but shall not include any
41
such distribution with respect to the secured portion, if any, of such claim.
The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity,
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Debt Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks and payable upon demand.
42
(4) The term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
(5) The term "Company" means any obligor upon the Debt Securities.
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more authenticating
agents (including, without limitation, the Company or any Affiliate thereof with
respect to one or more series of Debt Securities which shall be authorized on
behalf of the Trustee in authenticating Debt Securities of such series in
connection with the issue, delivery, registration of transfer, exchange, partial
redemption or repayment of such Debt Securities. Wherever reference is made in
this Indenture to the authentication of Debt Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of
the United States or of any State, having a principal office in the State of
California or the Borough of Manhattan, The City of New York, having a combined
capital surplus of at least $1,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority in the case of an authenticating
agent who is not organized and doing business under the laws of the United
States or of any State thereof or the District of Columbia.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or more
series of Debt Securities by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an
authenticating agent with respect to one or more series of Debt Securities by
giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may appoint
a successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall be
applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt Securities
of each series covered by such appointment may have endorsed thereon, in lieu of
the Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
43
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA
By_________________________________________
As Authenticating Agent for the Trustee
By_________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record Date
in respect of the Debt Securities of such series or on June 30 and December
31 of each year with respect to each series of Debt Securities for which
there are no Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered
Securities as of such Regular Record Date or June 15 or December 15, as the
case may be, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee pursuant to Section 703(c).
(b) If three or more Holders of Debt Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee proof that each such applicant has owned a Debt Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Debt
Securities of such series (in which case the applicants must hold Debt
Securities of such series) or with all Holders of Debt Securities with respect
to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Debt Securities of such series or of all Debt Securities, as the case may
be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender, otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debt Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year 1992,
the Trustee shall transmit by mail to all Holders of Debt Securities of any
series with respect to which it acts as Trustee, as provided in Subsection (c)
of this Section, a brief report dated as of such May 15 with respect to any of
the following events which may have occurred within the previous twelve months
(but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship specified
in paragraphs (1) through (10) of Section 608(c);
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Debt Securities of such series or any related coupons,
on any property or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than 1/2 of 1% of
the principal amount of the Outstanding Debt Securities of such series on
the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or any other obligor on the Debt
Securities of such series) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report,
(6) any additional issue of Debt Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Debt Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 602;
45
provided, however, that if the Trust Indenture Act is amended subsequent to the
date hereof to eliminate the requirement of the Trustee's brief report, the
report required by this Section need not be transmitted to any Holders.
(b) The Trustee shall transmit by mail to all Holders of Debt Securities of
any series for which it acts as the Trustee, as provided in Subsection (c) of
this Section, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a right or
charge, prior to that of the Debt Securities of such series, on property or
funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this Subsection, except that the Trustee for each series
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Debt Securities of such series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register.
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Debt Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it 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;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Debt Securities, in the manner
and to the extent provided in Section 703(c) with respect to reports
pursuant to Section 703(a), within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities, or coupons stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
47
(3) to add to any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provision or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(8) to evidence any changes to Section 608, 609 or 703(a) permitted by
the terms thereof; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(10) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of the Debt Securities of any series or any appurtenant
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Debt Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; provided, however, that an indenture supplemental hereto which
changes the required ownership set forth in the definition of Controlled
Subsidiary in Section 101 hereof from 80% to a majority but does not change any
other provision of this Indenture or modify in any other manner the rights of
the Holders of all the Debt Securities under this Indenture may be entered into
with the consent of the Holders of at least a majority in principal amount of
the Outstanding Debt Securities of each series; and provided further, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal or any installment of
principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due
48
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment, or the coin or
currency in which any Debt Security or the interest thereon or any coupon
is payable, or impair any right to the delivery of Capital Securities in
exchange for Debt Securities provided for in this Indenture or the right to
institute suit for the enforcement of any such payment or delivery on or
after the Stated Maturity thereof (or, in the case of redemption, repayment
or exchange, on or after the Redemption Date, Repayment Date or Capital
Exchange Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1604 for quorum or voting;
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1007, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Debt Securities of any series to
receive Capital Securities on any Capital Exchange Date for Debt Securities
of such series with a Market Value equal to the principal amount of such
Holder's Debt Securities of such series or in an amount sufficient to
provide proceeds upon sale by the Company in the Secondary Offering equal
to the principal amount of such Holder's Debt Securities of such series; or
(6) impair the right of any Holder of Convertible Securities of any
series to convert such Debt Securities pursuant to Article Nineteen;
and provided, further, that no change shall be made in the provisions of Article
Eighteen that will affect adversely the holders of Senior Debt without the
consent of the holders of all Senior Debt Outstanding.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders of the Debt Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and any appurtenant coupons that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities and any
appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer Securities on
or before Maturity, other than additional amounts, if any, payable as provided
in Section 1006 in respect of principal of (or premium, if any, on) such a Debt
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature. For all purposes of this Indenture, the exchange of Capital
Securities for Debt Securities of any series pursuant to the Indenture shall
constitute full payment of principal of the Debt Securities of such series being
exchanged on any Capital Exchange Date for Debt Securities of such series,
without prejudice to any Holder's rights pursuant to Section 1413.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Debt
Securities an office or agency where Debt Securities (but, except as otherwise
provided below, unless such Place of Payment is located outside the United
States, not Bearer Securities) may be presented or surrendered for payment,
where Debt Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debt Securities and this Indenture may be served. If Debt Securities of a series
are issuable as Bearer Securities, the Company will maintain, subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); provided, however,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an
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account maintained with a bank located in the United States; provided, however,
payment of principal of and any premium and interest denominated in Dollars
(including additional amounts payable in respect thereof) on any Bearer Security
may be made at an office or agency of, and designated by, the Company located in
the United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Debt Securities, at
the option of the Holder of any Bearer Security or related coupon, payment may
be made by check in the currency designated for such payment pursuant to the
terms of such Bearer Security presented or mailed to an address outside the
United States or by transfer to an account in such currency maintained by the
payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of such Place of Payment) where the Debt Securities
of one or more series and any appurtenant coupons (subject to the preceding
paragraph) may be presented or surrendered for any or all such purposes, and may
from time to time rescind such designations; provided however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for any
series of Debt Securities, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Debt Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Debt Securities of such series and
any appurtenant coupons, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of Debt
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series or any appurtenant
coupons; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its obligations
under this Indenture with respect to Debt Securities of any series or for any
other purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
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Any principal and interest received on the Eligible Instruments deposited
with the Trustee or any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust, and the
Holder of such Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper of general circulation in each of the City and County of San Francisco
and the Borough of Manhattan, The City of New York, and each Place of Payment or
mailed to each such Holder, or both, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year of the Company (which on the date
hereof is the calendar year) ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture, and, if the Company shall be in
default, specifying all such defaults and the nature thereof of which they may
have knowledge.
SECTION 1005. Limitation on Disposition of Voting Stock of and Merger and
Sale of Assets by the Bank.
The Company will not
(1) sell, transfer or otherwise dispose of any shares of Voting Stock
of the Bank or permit the Bank to issue, sell, or otherwise dispose of any
shares of its Voting Stock, unless, after giving effect to any such
transaction, the Bank remains a Controlled Subsidiary; or
(2) permit the Bank to
(a) merge or consolidate, unless the surviving corporation is a
Controlled Subsidiary; or
(b) convey or transfer its properties and assets substantially as
an entirety to any Person, except to a Controlled Subsidiary.
SECTION 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Debt Security of any series
or any coupon appertaining thereto additional amounts upon the terms and subject
to the conditions provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Debt Security of any series or any related
coupon or the net proceeds received on the sale or exchange of any Debt Security
of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided for in the terms of such Debt Securities and this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Debt Securities (or if the Debt Securities of that series will
not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made),
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and at least 10 days prior to each date of payment of principal (and premium, if
any) or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of (and premium,
if any) or interest on the Debt Securities of that series shall be made to
Holders of Debt Securities of that series or the related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Debt Securities of that series. If
any such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Debt Securities or coupons and the Company will pay to the
Trustee or such Paying Agent the additional amounts, if any, required by the
terms of such Debt Securities and the first paragraph of this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 1005, with respect to the Debt Securities of
any series if, before the time for such compliance the Holders of at least 66
2/3% in principal amount of the Debt Securities of such series at the time
Outstanding shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by an Officers' Certificate authorized by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Debt Securities of any series, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount and the tenor and terms of the Debt Securities
of any series to be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Debt Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
53
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at such
place or places which are outside the United States, except as otherwise
provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent such Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 1002, unless otherwise
specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for
54
redemption in accordance with said notice, such Debt Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of coupons for such interest (at an
office or agency located outside the United States except as otherwise provided
in Section 1002), and provided further, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Debt Securities, or one or more
Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of a series except as otherwise specified as
contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
term of Debt Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debt Securities of any
series, the amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by the terms of Debt
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Debt Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking
55
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 1202, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Debt Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 301 for Debt Securities of such series) in
accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
SECTION 1303. Exercise of Option: Notice.
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Debt Security to be repaid in
whole or in part together with written notice of the exercise of such option at
any office or agency of the Company in a Place of Payment, not less than 30 nor
more than 45 days prior to the Repayment Date; provided, however, that surrender
of Bearer Securities together with written notice of exercise of such option
shall be made at an office or agency located outside the United States except as
otherwise provided in Section 1002. Such notice, which shall be irrevocable,
shall specify the principal amount of such Debt Security to be repaid, which
shall be equal to the minimum authorized denomination for such Debt Security or
an integral multiple thereof, and shall identify the Debt Security to be repaid
and, in the case of a partial repayment of the Debt Security, shall specify the
denomination or denominations of the Debt Security or Debt Securities of the
same series to be issued to the Holder for the portion of the principal of the
Debt Security surrendered which is not to be repaid.
56
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Debt Security so surrendered which is not to be
paid; provided, however, that the issuance of a Registered Security therefor
shall be subject to applicable laws and regulations, including provisions of the
United States federal income tax laws and regulations in effect at the time of
the exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Debt Securities shall relate, in the
case of any Debt Security repaid or to be repaid only in part, to the portion of
the principal of such Debt Security which has been or is to be repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Debt Securities
of such series from the Holders thereof who give notice and surrender their Debt
Securities in accordance with Section 1303.
SECTION 1305. Debt Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Debt Securities so to be repaid having been surrendered as aforesaid, such Debt
Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price, in which case the Company shall continue to be obligated for the
principal amount of such Debt Securities and shall be obligated to pay interest
on such principal amount at the rate borne by such Debt Securities from time to
time until payment in full of such principal amount.
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ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides for the exchange of Capital Securities for Debt Securities of any
series at the election of the Company or otherwise, Debt Securities of such
series shall be exchanged for Capital Securities in accordance with their terms
and (except as otherwise specified in such Officers' Certificate or supplemental
indenture) in accordance with this Article.
SECTION 1402. Exchange of Capital Securities for Debt Securities at Stated
Maturity.
At the Stated Maturity of Debt Securities of any series which may be
exchanged, subject to prepayment prior to such Stated Maturity on the Capital
Exchange Date selected by the Company for Debt Securities of such series, as
described below, early exchange pursuant to Section 1403 or payment in cash
pursuant to Section 502, 1416 or 1417, the Company shall exchange Capital
Securities with a Market Value equal to the principal amount of the Outstanding
Debt Securities of such series for the Debt Securities of such series in whole.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent as to the type of Capital Securities to be exchanged
for the Debt Securities of such series on the Capital Exchange Date for Debt
Securities of such series. Such notice shall include a form of Capital Security
Election Form substantially as set forth in Section 1409, shall make the
statements and contain the information included in Section 1404(a), and shall be
given no less than 90 days prior to the Stated Maturity of such Debt Securities.
Notice of such Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of the Debt Securities of such
series, if larger, shall also be given by the Company in the manner required by
Section 1404(b) not less than three Business Days prior to such Capital Exchange
Date.
The Capital Exchange Date for any prepayment of Debt Securities of each
series may be selected by the Company to be any date between a date 60 days
prior to the Stated Maturity of such Debt Securities and such Stated Maturity,
inclusive, and to be the date of the closing of the Secondary Offering for Debt
Securities of such series. In the event the Company fails to effect such
Secondary Offering, the Capital Exchange Date will be the Stated Maturity of the
Debt Securities of such series. Notice of each such Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of the Debt Securities of such series, if larger, shall also be given by the
Company in the manner required by Section 1404(b) not less than three Business
Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing of
the Secondary Offering will occur on the Capital Exchange Date.
SECTION 1403. Right of Early Exchange of Capital Securities for Debt
Securities.
The Debt Securities of any series to be exchanged may be exchanged at the
election of the Company, as a whole or from time to time in part, prior to the
Stated Maturity thereof for Capital Securities with a Market Value equal to the
principal amount of such Debt Securities on any early Capital Exchange Date,
together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent not less than 90 days nor more than 120 days prior to
any early Capital Exchange Date for Debt Securities of such series, which notice
shall include a form of Capital Security Election Form substantially as set
forth in Section 1409 and make the statements and contain the information
included in Section 1404(a). Notice of each such early Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of such series, if larger, shall also be given by the Company in the manner
required by Section 1404(b) not less than three Business Days prior to such
early Capital Exchange Date.
The Company may at its option accelerate any such Capital Exchange Date
within the 60-day period prior to such Capital Exchange Date by giving notice of
such accelerated Capital Exchange Date, together with the amount
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of Capital Securities being exchanged for each $1,000 principal amount of Debt
Securities of such series, or the minimum denomination of such series, if
larger, in the manner required by Section 1404(b) not less than three Business
Days prior to such accelerated Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing of
such Secondary Offering will occur on the Capital Exchange Date.
SECTION 1404. Notices of Exchange.
(a) All notices of exchange subject to this paragraph shall state:
(1) the type of Capital Securities to be exchanged for the Debt
Securities of such series on the Capital Exchange Date for Debt Securities
of such series;
(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such series being exchanged
will receive on such Capital Exchange Date accrued and unpaid interest in
cash and may elect to receive on such Capital Exchange Date Capital
Securities with a Market Value equal to the principal amount of the Debt
Securities of such series owned by such Holder and that, in the absence of
any such election by the Holder, such Holder will be deemed to have
received on such Capital Exchange Date Capital Securities having such
Market Value and to have elected to have such Capital Securities sold for
such Holder by the Company in the related Secondary Offering for cash
proceeds to such Holder on such Capital Exchange Date equal to the
aggregate principal amount of all Debt Securities of such series being
exchanged owned by such Holder;
(4) that on such Capital Exchange Date the Capital Exchange Price will
become due and payable upon each such Debt Security to be exchanged and
that interest thereon will cease to accrue on and after said date;
(5) if less than all the Outstanding Debt Securities of any series are
to be exchanged, the identification and principal amount of the particular
Debt Securities to be exchanged;
(6) that each Holder for whom Capital Securities are being offered in
the Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the
Company deems necessary or appropriate to effect such Secondary Offering;
(7) (A) that the Company will assume, unless advised to the contrary
in writing within 30 days after the date of the notice of exchange, that
the Capital Securities are to be offered for the account of the Holder,
that such Holder has not held any position, office or other material
relationship with the Company within three years preceding the Secondary
Offering, that the Holder owns no other Capital Securities, and that after
completion of the Secondary Offering the Holder will own less than one
percent of the class of such Capital Securities, and (B) that if any of
these assumptions is not correct, the Holder shall promptly so advise the
Company;
(8) the Place or Places of Capital Exchange;
(9) that Bearer Securities may be surrendered for payment or exchange
only at a Place or Places of Capital Exchange which are outside the United
States, except as otherwise provided in Section 1002; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall be given in the
manner provided in Section 106 to each Holder of Debt Securities to be
exchanged, and the Company shall forthwith give such notice by telephone to the
Trustee and the Capital Exchange Agent, promptly confirmed in writing.
(c) (1) Except as may otherwise be specified pursuant to Section 301 for
Debt Securities of any series, if less than all the Debt Securities of any
series are to be exchanged, the Company shall at least 135 days prior to the
related Capital Exchange Date (unless a shorter period shall be satisfactory to
the Trustee) notify the Trustee of such Capital Exchange Date and of the
principal amount of Debt Securities of such series to be exchanged and the
particular Debt Securities to be exchanged shall be selected not more than 135
days prior to the related Capital Exchange Date by the Trustee, from the
Outstanding Debt Securities of such series not previously exchanged, by
59
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for exchange of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Registered or Bearer Securities of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
In any case where Debt Securities of such series are registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Debt Security of such series.
(2) The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for exchange and, in the case of any Debt Securities
selected for partial exchange, the principal amount thereof to be exchanged.
(3) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the exchange of Debt Securities shall
relate, in the case of any Debt Securities exchanged or to be exchanged only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be exchanged.
SECTION 1405. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities.
(a) Subject to Section 503, and without prejudice to the rights pursuant to
Section 1413 of Holders of Debt Securities of any series to be exchanged, no
Holder of Debt Securities of such series shall be entitled to receive any cash
from the Company on any Capital Exchange Date or at the Stated Maturity of any
Debt Security of such series except from the proceeds of the sale of such
Holder's Capital Securities in the related Secondary Offering and except as
provided herein with respect to fractional Capital Securities, amounts equal to
expenses of the sale in the related Secondary Offering of such Capital
Securities accrued and unpaid interest and acceleration upon an Event of
Default. In the event that the Company does not effect such Secondary Offering,
such Holder will receive Capital Securities with a Market Value equal to the
principal amount of Debt Securities of such series owned by such Holder which
are subject to such exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 1413.
(b) Each Holder for whom Capital Securities are being offered in the
Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days following the
date of the notice described in Section 1404(a) by any Holder for whom Capital
Securities are being offered in the Secondary Offering, the Company shall assume
for the purposes of any Secondary Offering that the Capital Securities are to be
offered for the account of such Holder, that such Holder has not held any
position, office or other material relationship with the Company within three
years preceding the Secondary Offering, that such Holder owns no other Capital
Securities, and that after completion of the Secondary Offering such Holder will
own less than one percent of the class of such Capital Securities.
(d) Each Holder for whom Capital Securities are being offered in the
Secondary Offering agrees to indemnify and hold harmless the Company, any other
Holder, and any underwriter, agent or other similar person from and against any
and all losses, claims, damages and liabilities resulting from or based upon any
untrue statement or alleged untrue statement of any material fact contained in
any notice of exchange, any offering memorandum or selling document or
registration statement relating to the Secondary Offering, a preliminary
prospectus or prospectus contained therein, or any amendment thereof or
supplement thereto, or resulting from or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue statement,
alleged untrue statement, omission or alleged omission is made therein (i) in
reliance upon and in conformity with any written information furnished to the
Company by or on behalf of any such Holder specifically for use in connection
with the preparation thereof or (ii) because of such Holder's failure to advise
the Company in writing that any of the assumptions described in Section 1404(a)
(7) (A) and Subsection (c) of this Section is incorrect.
(e) In order for any Holder who has duly returned a Capital Security
Election Form to receive Capital Securities on any Capital Exchange Date for any
Debt Security of any series, (1) the Holder of any Registered Security to be
exchanged shall surrender such Debt Security (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
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executed by, the Holder of any Registered Security or his attorney duly
authorized in writing), to the Capital Exchange Agent on the Capital Exchange
Date, and (2) the Holder of any Bearer Security to be exchanged shall surrender
such Debt Security and all unmatured coupons and all matured coupons in default
with the Capital Security Election Form at a Place of Capital Exchange outside
the United States designated pursuant to Section 1404(a) (8) except as otherwise
provided in Section 1002. If the Holder of a Bearer Security is unable to
produce any such Debt Security or coupons, the surrender of such Debt Security
or coupons may be waived by the Company and the Trustee, if there be furnished
to them such security or indemnity as they may require to save each of them and
any Capital Exchange Agent harmless in respect of such Debt Security or coupons.
Except as provided in Section 307, no payment or adjustment shall be made upon
any exchange on account of any interest accrued on any Debt Securities
surrendered for exchange or on account of any dividends or interest on the
Capital Securities issued upon exchange.
(f) Debt Securities of any series to be exchanged shall be deemed to have
been exchanged on the Capital Exchange Date therefor in accordance with the
foregoing provisions, and at such time the rights of the Holders of such Debt
Securities as Holders shall cease (subject to the provisions of Section 307 and
without prejudice to the rights of Holders of Debt Securities of such series
pursuant to Section 1413), and the Person or Persons entitled to receive the
Capital Securities issuable upon such exchange shall be treated for all purposes
as the record holder or holders of such Capital Securities at such time.
SECTION 1406. Election to Exchange.
The election of the Company to exchange Capital Securities for Debt
Securities pursuant to Section 1403 shall be evidenced by a Board Resolution.
SECTION 1407. Deposit of Capital Exchange Price.
On any Capital Exchange Date for Debt Securities of any series which may be
exchanged, the Company shall deposit with the Trustee or with a Capital Exchange
Agent in the City and County of San Francisco or the Borough of Manhattan, The
City of New York (or, if the Company is acting as Capital Exchange Agent,
segregate and hold in trust as provided in Section 1003) Capital Securities and
an amount of money which together are sufficient to pay the Capital Exchange
Price of, and (except if such Capital Exchange Date shall be an Interest Payment
Date) accrued interest on, all the Debt Securities of such series or portions
thereof which are to be exchanged on that date; provided, however, that deposits
with respect to Bearer Securities shall be made with a Capital Exchange Agent or
Capital Exchange Agents, located outside the United States except as otherwise
provided in Section 1002, unless otherwise specified as contemplated by Section
301.
SECTION 1408. Debt Securities Due on Capital Exchange Date; Debt Securities
Exchanged in Part.
Notice of exchange having been given as aforesaid, the Debt Securities of
any series so to be exchanged shall, on the Capital Exchange Date for such Debt
Securities, become due and payable at the Capital Exchange Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Capital Exchange Price and accrued interest) Debt Securities of
such series to be exchanged shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be exchanged, except
to the extent provided below, shall be void. Upon surrender of any Debt Security
of such series for exchange in accordance with said notice, such Debt Security
shall be paid by the Company at the Capital Exchange Price, together with
accrued interest to the Capital Exchange Date; provided, however, that if such
Capital Exchange Date is an Interest Payment Dare, the interest payable on such
date shall be paid to the Holder of Debt Securities of such series according to
the terms of the Debt Securities of such series and the provisions of Section
307; and provided further, that exchanges of Bearer Securities shall be made
only and installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Capital Exchange Date shall be payable only at an office or
agency located outside the United States except as otherwise provided in Section
1002 and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be accompanied by
all unmatured coupons and all matured coupons in default such Bearer Security
may be paid after deducting from the Capital Exchange Price an amount equal to
the face amount of all missing coupons, or the surrender of such missing coupons
may be waived by
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the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Capital Exchange
Agent harmless. If thereafter the Holder of such Bearer Security shall surrender
to the Trustee or Capital Exchange Agent any such missing coupon in respect of
which a deduction shall have been made from the Capital Exchange Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest on Bearer Securities shall be payable only at an office or agency
located outside of the United States except as otherwise provided in Section
1002.
If any Debt Security of any series called for exchange shall not be so paid
or exchanged upon surrender thereof for exchange, the principal shall, until
paid, bear interest from such Capital Exchange Date at the rate or rates
prescribed therefor in such Debt Security; provided, however, that in the case
of Bearer Securities, any such principal and interest thereon shall be paid at
an office or agency located outside the United States except as otherwise
provided in Section 1002.
Any Registered Security which is to be exchanged only in part shall be
surrendered as provided herein (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing) and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities of the same
series, of any authorized denomination or denominations as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unexchanged portion of principal of the Debt Security so surrendered.
Any Bearer Security which is to be exchanged only in part shall be
surrendered as provided herein and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities or new Bearer
Security or Securities (and all appurtenant unmatured coupons and coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unexchanged portion of principal of the
Debt Security so surrendered; provided, however, the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities in exchange for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such exchanges
thereafter unless and until the Company delivers to the Trustee a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 1409. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be substantially as
follows with such additions, deletions or changes thereto as may be approved by
the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses of
Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security] ("Debt
Securities") of BankAmerica Corporation hereby elects to receive on the Capital
Exchange Date determined pursuant to the Indenture dated as of November 1, 1991
("Indenture"), between BankAmerica Corporation and Manufacturers Hanover Trust
Company of California, as Trustee, and referred to in the notice of exchange
published or delivered to the undersigned with this Capital Security Election
Form, Capital Securities of BankAmerica Corporation with a Market Value equal to
the principal amount of the Debt Securities being exchanged owned by the
undersigned Holder and, in the case of Bearer Securities, delivered herewith
together with all coupons appertaining thereto. Unless this Capital Security
Election Form together with, in the case of Bearer Securities, such Bearer
Securities and coupons, is received by any Capital Exchange Agent named above at
an address shown above on or prior to _______________ the Holder will
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be deemed to have elected to participate in the sale of the Holder's Capital
Securities in the Secondary Offering and will receive cash on the Capital
Exchange Date in an amount equal to the principal amount of all Debt Securities
being exchanged owned by the Holder. All terms used herein and not otherwise
defined herein shall have the meanings specified in the Indenture.
Dated__________________________ _____________________________
Name of Holder
SECTION 1410. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon exchange for any Debt
Securities. If more than one Debt Security of any series shall be surrendered
for exchange at one time by the same Holder, the amount of all Capital
Securities which shall be issuable upon exchange thereof shall be computed on
the basis of the aggregate principal amount of Debt Securities of such series so
surrendered. In lieu of issuing any fractional Capital Security, the Company
shall pay a cash adjustment in respect of such fraction in an amount equal to
the same fraction of the Market Value of the Capital Security.
SECTION 1411. Company to Obtain Governmental and Regulatory Approvals.
The Company covenants that if any Capital Securities required to be
exchanged for Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law, or any national
securities exchange, before such Capital Securities may be issued, the Company
will in good faith and as expeditiously as possible endeavor to cause such
Capital Securities to be duly registered or approved, as the case may be;
provided, however, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
SECTION 1412. Taxes on Exchange.
The Company will pay any and all transfer, stamp or similar taxes that may
be payable in respect of the issue or delivery of Capital Securities in exchange
for Debt Securities pursuant hereto.
SECTION 1413. Covenants as to Capital Securities and Secondary Offering.
(a) The Company covenants that it will issue, or cause to be issued,
Capital Securities of the type, in the amounts and at the times required by this
Indenture.
(b) The Company covenants that all Capital Securities which may be issued
in exchange for Debt Securities will upon issuance be duly and validly issued
and, if applicable, fully paid and nonassessable.
(c) The Company unconditionally undertakes to sell Capital Securities in
each Secondary Offering (and to bear all expenses of each Secondary Offering,
including underwriting discounts and commissions) at the times and in the manner
required by this Indenture unless all Holders have duly elected to receive
Capital Securities on the related Capital Exchange Date.
(d) The Company agrees to indemnify and hold harmless in connection with
any Secondary Offering any Holder for the account of whom Capital Securities are
being offered and sold from and against any and all losses, claims, damages and
liabilities resulting from or based upon any untrue statement or alleged untrue
statement of any material fact contained in any notice of exchange, any offering
memorandum or selling document or registration statement relating to the
Secondary Offering, any preliminary prospectus or prospectus contained therein,
or any amendment thereof or supplement thereto, or resulting from or based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
resulting from the Company's failure to comply with Section 1411; provided
however, the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement, alleged untrue statement, omission or alleged omission made
therein (i) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for use
in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Company in writing that any of the assumptions described
in Section 1404(a) (7) (A) is incorrect. In connection with any Secondary
Offering, the Company agrees to obtain appropriate indemnification of any Holder
for the
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account of whom Capital Securities are being offered and sold in any Secondary
Offering from any underwriter, agent or other similar person.
SECTION 1414. Provision in Case of Consolidation, Merger or Transfer of
Assets.
In case of any consolidation of the Company with, or merger of the Company
into, any other corporation (other than a consolidation or merger in which the
Company is the continuing corporation), or in case of any conveyance or transfer
of the properties and assets of the Company substantially as an entirety, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets of the Company, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Debt Security
then Outstanding shall have the right thereafter to receive securities of such
successor on the Capital Exchange Date for such Debt Security with a Market
Value equal to the principal amount of such Debt Security. The above provisions
of this Section shall similarly apply to successive consolidations, mergers,
conveyances or transfers.
SECTION 1415. Responsibility of Trustee.
The Trustee shall not at any time be under any duty or responsibility to
any Holder of Debt Securities of any series to be exchanged to determine the
Market Value of any Capital Securities delivered in exchange for Debt Securities
of such series and may rely on and shall be entitled to receive prior to any
Capital Exchange Date for Debt Securities of such series an Officers'
Certificate of the Company as to the Market Value of the Capital Securities
being exchanged for the Debt Securities of such series and the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series or the minimum denomination of such series, if larger, and that
such Capital Securities qualify as Capital Securities under the definition
thereof contained herein. The Trustee shall not be accountable with respect to
the validity or value (or the kind or amount) of any Capital Securities which
may at any time be issued or delivered in exchange for any Debt Security, and
the Trustee does not make any representation with respect thereto. The Trustee
shall not be responsible for any failure of the Company to issue, transfer or
deliver any Capital Securities or Capital Security certificates or other
securities or property upon the surrender of any Debt Security for the purpose
of exchange or to comply with any of the covenants of the Company contained in
this Article.
SECTION 1416. Revocation of Obligation to Exchange Capital Securities for
Debt Securities.
The Company's obligation to exchange Capital Securities for Debt Securities
of any series as provided in Section 1402 is absolute and unconditional;
provided, however, that such obligation may be revoked at the option of the
Company at any time on not less than 60 days' prior notice given in the manner
provided in Section 106 to the Holders of Debt Securities of such series, the
Trustee and the Capital Exchange Agent, if the Company shall determine that
under then regulations of the Company's Primary Federal Regulator either the
Debt Securities are no longer includable as capital or it is no longer necessary
for the Company to be obligated to exchange Capital Securities for Debt
Securities in order for the Debt Securities to maintain the same capital
treatment as they are then receiving under such regulations or if approval of
the Primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series in cash at
100% of the principal amount thereof on the Stated Maturity thereof, and
(b) the Company may, at any time on or after a date selected by the
Company, on not less than 60 days' prior notice given in the manner
provided in Section 106 to the Holders of Debt Securities of such series
and the Trustee, redeem the Debt Securities of such series, in whole or in
part, for cash at 100% of the principal amount thereof, plus accrued
interest to the Redemption Date.
SECTION 1417. Optional Securities Funds.
(a) (1) With respect to Debt Securities of any series for which an
Officers' Certificate or supplemental indenture pursuant to Section 301
provides that the Debt Securities of such series are exchangeable for
Capital Securities, the Company may elect to establish a fund (referred to
herein as the "Optional Securities Funds")
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to which funds may at any time be designated by the Company as provided in
Section 1502 as if such Optional Securities Funds were Securities Funds (as
defined in Article Fifteen) to be used to pay the principal of the Debt
Securities of such series.
(2) Notwithstanding any provisions to the contrary contained in this
Indenture or in the Debt Securities of any series, neither funds designated
as Optional Securities Funds nor any other property from time to time held
as Optional Securities Funds shall be deemed to be for any purpose property
of the Holders or trust funds for the benefit of the Holders, and the
Optional Securities Funds shall not constitute security for the payment of
the Debt Securities.
(b) In lieu of, or in addition to, any exchange of Capital Securities for
Debt Securities of any series which may be made in accordance with the
provisions of Sections 1402 and 1403, the Company may elect to redeem the Debt
Securities of such series in accordance with the provisions of Section 1106 and
the terms of the Debt Securities of each series, in whole or in part, by paying
the principal of such Debt Securities with funds designated as Optional
Securities Funds at a price equal to the percentage of the principal amount
established in the terms of the Debt Securities of such series on the Redemption
Date of the Debt Securities to be so redeemed, and (except if such Redemption
Date shall be an Interest Payment Date) by paying accrued interest on such Debt
Securities. If such Redemption Date is an Interest Payment Date, the interest
payable on such date shall be paid to the Holder of Debt Securities of such
series according to the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed redemption in the manner
provided in Section 106 to the Holders of the Debt Securities of such series
within the time prescribed for the giving of the initial notice in Section 1402
or 1403, depending upon the Redemption Date selected by the Company. Such notice
shall state the Redemption Date and the place or places where the Debt
Securities of the series to be paid are to be surrendered for payment; provided
however, if such redemption is of less than all of the Debt Securities of such
series and is to be made on a Capital Exchange Date specified in accordance with
Section 1402 or 1403, then such notice may be incorporated into any initial
notice of such Capital Exchange Date and provided that no notice of any
redemption may be given unless there are sufficient Optional Securities Funds to
pay the principal amount of the Debt Securities to be redeemed.
(d) If less than all the Debt Securities of any series are to be so
redeemed, then Sections 1404(c) and 1408 shall apply to the redemption in the
same manner as if such Debt Securities were to be exchanged for Capital
Securities.
(e) Funds designated as Optional Securities Funds shall be released from
such designation under the circumstances described in Section 1503.
ARTICLE FIFTEEN
SECURITIES FUNDS
SECTION 1501. Creation of Securities Funds.
A fund (the "Securities Funds") will be established when specified in an
Officers' Certificate or supplemental indenture pursuant to Section 301 for the
Debt Securities of any series pursuant to which funds may be designated by the
Company as provided in Section 1502, to be used to pay the principal of the Debt
Securities of that series.
Notwithstanding any provision to the contrary contained in this Indenture
or in the Debt Securities of any series, neither funds designated as Securities
Funds nor any other property from time to time held as Securities Funds shall be
deemed to be for any purpose property of the Holders or trust funds for the
benefit of the Holders, and the Securities Funds shall not constitute security
for the payment of the Debt Securities.
SECTION 1502. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to (i) the net proceeds
of the sale of Capital Securities for cash from time to time after the date of
initial issuance of the Debt Securities of any series for which funds may be
designated by the Company as provided in this Section, and (ii) the market
value, as determined by the Company,
65
of Capital Securities sold from time to time after the date of initial issuance
of the Debt Securities of such series in exchange for other property, less the
expenses to effect any such exchanges, and (iii) other funds which the
regulations of the Primary Federal Regulator then permit for the payment of
principal of "mandatory convertible securities (equity commitment notes)" as
defined in such regulations; provided that (x) the Company has designated such
amounts as Securities Funds on its books and records in the manner required by
the Primary Federal Regulator, and (y) there shall be deducted from the
Securities Funds an amount equal to the amount of any funds used to redeem or
repay the Debt Securities of such series for which Securities Funds are required
to be designated or any similar securities.
SECTION 1503. Covenant of the Company to Obtain Securities Funds.
Notwithstanding anything else contained herein, the Company hereby
covenants and agrees that with regard to the Debt Securities of any series which
by its terms requires the designation of Securities Funds (i) by the Interest
Payment Date which occurs on or next preceding the date when one-third of the
period from the date of issuance of the Debt Securities of such series to their
Stated Maturity has elapsed, it will have obtained Securities Funds in an amount
that will equal at least one-third of the original aggregate principal amount of
the Debt Securities of such series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have prepared and delivered to
the Trustee an Officer's Certificate to the foregoing effect, (ii) by the
Interest Payment Date which occurs on or next preceding the date when two-thirds
of the period from the date of issuance of the Debt Securities of such series to
their Stated Maturity has elapsed, it will have obtained Securities Funds in an
amount that will equal at least two-thirds of the original aggregate principal
amount of the Debt Securities of such series (or such lesser amount as the
Primary Federal Regulator may permit from time to time) and will have prepared
and delivered to the Trustee an Officers' Certificate to the foregoing effect,
and (iii) by 60 days prior to the Stated Maturity of the Debt Securities of such
series, it will have obtained Securities Funds in an amount that will equal not
less than the original aggregate principal amount of the Debt Securities of such
series (or such lesser amount as the Primary Federal Regulator may permit from
time to time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect; provided, however, that such covenant and
agreement of the Company shall be cancelled, and amounts theretofore designated
as Securities Funds will be released from such designation in the event and to
the extent that the Company shall determine that under then regulations of the
Company's Primary Federal Regulator either the Debt Securities are no longer
includable as capital or it is no longer necessary for the Company to be
obligated to pay the principal of the Debt Securities out of Securities Funds in
order for the Debt Securities to maintain the same capital treatment as they are
then receiving under such regulations, in the event and to the extent that
approval of the Primary Federal Regulator is obtained for such cancellation and
release or in the event and to the extent that the Company shall have exchanged
or redeemed such Debt Securities pursuant to the terms of such Debt Securities
of such series from a source other than amounts designated as Securities Funds.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Debt Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of Debt
Securities of such series.
SECTION 1602. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1601, to be held at such time and at such place in the City and
County of San Francisco, the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Debt Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
66
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Debt Securities of such series for any purpose specified in Section 1601, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
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 Debt Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the
City and County of San Francisco, 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 (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1604. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series, provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than
66 2/3% in principal amount of the Outstanding Debt Securities of a series, the
Persons entitled to vote 66 2/3% in principal amount of the Outstanding Debt
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairperson of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1602(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
Except as limited by the provisos to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series;
provided, however, that, except as limited by the provisos to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Debt Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of 66 2/3% in principal
amount of the Outstanding Debt Securities of that series; and provided, further,
that, except as limited by the provisos to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
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SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of
Debt Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 1602(b), in
which case the Company or the Holders of Debt Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Debt Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1602 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Debt
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE SEVENTEEN
DEFEASANCE
Section 1701. Termination of Company's Obligations.
With respect to any series of Debt Securities, if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient, to pay principal (and premium, if any) and interest
when due on the Debt Securities of such series and any coupons appertaining
thereto and any mandatory sinking fund, repayment or analogous payments thereon
on the scheduled due dates therefor at the Stated Maturity thereof, the
Company's obligations under Section 1005 shall terminate with respect to the
Debt Securities of the series for which such deposit was made; provided,
however, that (i) no Event of Default with respect to the Debt Securities of
such series under Section 501 (1) or 501(2) or event that with notice or lapse
of time or both would constitute such an Event of Default shall have occurred
and be continuing on such date and (ii) such termination shall not relieve the
Company of its obligations under the Debt Securities of such series and this
Indenture to pay when due the principal of (and premium, if any) and interest
and additional amounts on such Debt Securities and any coupons appertaining
thereto if such Debt Securities or coupons are not paid (or payment is not
provided for) when due from the money and Eligible Instruments (and the proceeds
thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible Instruments
and the termination of the Company's obligations with respect to the Debt
Securities of any series under Section 1005 pursuant to the provisions of this
Section that the Company deliver to the Trustee (i) an opinion of nationally
recognized independent tax counsel to the effect that (a) Holders of Debt
Securities of such series and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and termination and (b) such Holders (and future Holders) will be
subject to tax in the same amount, manner and timing as if such deposit and
termination has not occurred and (ii) an Officers' Certificate to the effect
that under the laws in effect on the date such money and/or Eligible Instruments
are deposited with the Trustee, the amount thereof will be sufficient, after
payment of all Federal, state and local taxes in respect thereof payable by the
Trustee, to pay principal (and premium, if any) and interest when due on the
Debt Securities of such series and any coupons appertaining thereto.
It shall be an additional condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations under Section 1005
pursuant to the provisions if this Section, with respect to the Debt Securities
of any series then listed on the New York Stock Exchange, that the Company
deliver an Opinion of Counsel that the Debt Securities of such series will not
be delisted from the New York Stock Exchange as a result of such deposit and
termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations with
respect to the Debt Securities of such series under Section 1005 pursuant to the
provisions of this Section.
SECTION 1702. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Eligible Instruments not required for the payment
of the principal of (and premium, if any) and interest on the Debt Securities of
any series and any related coupons for which money or Eligible Instruments have
been deposited pursuant to Section 1701 held by them at any time.
The Trustee and any Paying Agent shall pay to the Company upon Company
Request any money held by them for the payment of principal (and premium, if
any) and interest that remains unclaimed for two years after the Maturity of the
Debt Securities for which a deposit has been made pursuant to Section 1701.
After such payment to the Company, the Holders of the Debt Securities of such
series and any related coupons shall thereafter, as unsecured general creditors,
look only to the Company for the payment thereof.
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SECTION 1703. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
ARTICLE EIGHTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1801. Debt Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything in this Indenture or the
Debt Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Debt Securities of each series and any coupons appurtenant
thereto is subordinate and junior in right of payment to all Senior Debt to the
extent provided herein, and each Holder of Debt Securities of each series and
coupons appurtenant thereto, by such Holder's acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Debt shall continue to be Senior Debt and
entitled to the benefits of these subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Debt or extension or
renewal of the Senior Debt.
In the event that the Company shall default in the payment of any principal
of (or premium, if any) or interest on any Senior Debt when the same become due
and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the Holders of Senior Debt or any trustee therefor,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities,
by set-off or otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest on any of the Debt Securities, or
in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Debt Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the Holders of Senior
Debt in accordance with the priorities then existing among such Holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Debt Securities and coupons appurtenant thereto, together
with the Holders of any obligations of the Company ranking on a parity with the
Debt Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Debt Securities and such other
obligations before any
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payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Company ranking
junior to the Debt Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in the
right to enforce subordination of the indebtedness evidenced by the Debt
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Debt Securities and
coupons appurtenant thereto or prevent the Trustee or the Holder from exercising
all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding. Upon the payment in full of all
Senior Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Debt Securities of such
series and coupons appertaining thereto, if any, shall have been paid in full,
and such payments or distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Debt, shall, as between the Company and
its creditors other than the holders of Senior Debt, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by the Company on account
of Senior Debt, and not on account of the Debt Securities of such series.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of this Section 1801 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Debt Securities or ranking junior to the Debt Securities, shall
not be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Debt Securities or ranking junior to
the Debt Securities.
SECTION 1802. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company referred to in
this Article Eighteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the persons
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entitled to participate in such distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Eighteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be entitled to
rely upon a written notice by a Person representing himself or herself to be a
holder of Senior Debt (or a trustee or representative on behalf of such holder)
as evidence that such Person is a holder of such Senior Debt (or is such a
trustee or representative). In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payments or distributions
pursuant to this Article Eighteen, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Article Eighteen, and if such
evidence is not furnished, the Trustee may offer any payment to such Person
pending judicial determination as to the right of such Person to receive
payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt.
SECTION 1803. Payment Permitted If No Default.
Nothing contained in this Article Eighteen or elsewhere in this Indenture,
or in any of the Debt Securities, shall prevent (a) the Company at any time,
except during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the conditions described in,
Section 1801, from making payments of the principal of (or premium, if any) or
interest on the Debt Securities or (b) the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to payments of the
principal of or interest on the Debt Securities, if, at the time of such
deposit, the Trustee or such Paying Agent, as the case may be, did not have the
written notice provided for in Section 1804 of any event prohibiting the making
of such deposit, or if, at the time of such deposit (whether or not in trust) by
the Company with the Trustee or any Paying Agent (other than the Company) such
payment would not have been prohibited by the provisions of this Article, and
the Trustee or any Paying Agent shall not be affected by any notice to the
contrary received by it on or after such date.
SECTION 1804. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Eighteen or elsewhere in this Indenture contained
to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 1801 has
happened, until the Trustee shall have received an Officers' Certificate to that
effect or notice in writing to that effect signed by or on behalf of the holder
or holders, or their representatives, of Senior Debt who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or holders or representatives or from any
trustee under any indenture pursuant to which such Senior Debt shall be
outstanding. The Company shall give prompt written notice to the Trustee and to
the Paying Agent of any facts which would prohibit the payment of money to or by
the Trustee or any Paying Agent.
SECTION 1805. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such Holder's acceptance
thereof authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1806. Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Debt which may at the time be held by it, to the same
extent as any other holder of Senior Debt provided that nothing in this Article
shall deprive the Trustee of any rights as such holder and provided further that
nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
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SECTION 1807. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1804 and 1806 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1808. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to enforce
subordination as herein provided shall at any time 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 which any such holder may have or be
otherwise charged with. The holders of Senior Debt may, at any time or from time
to time and in their absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or alter, any such
Senior Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights
unders the Senior Debt including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders of the Debt
Securities or the Trustee and without affecting the obligations of the Company,
the Trustee or the Holders of the Debt Securities under this Article.
ARTICLE NINETEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1901. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
SECTION 1902. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof (or if such
Convertible Security is called for redemption or submitted for repayment, then
in respect of such Convertible Security to and including but not after the close
of business on the Redemption or Repayment Date, as the case may be, unless the
Company shall default in the payment due) to convert the principal amount of any
such Convertible Security, or, in the case of any Convertible Security of a
denomination greater than $1,000, any portion of such principal which is $1,000
or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Convertible Security or portion
thereof surrendered for conversion by the Conversion Price, by surrender of the
Convertible Security so to be converted in whole or in part in the manner
provided in Section 1903. Such conversion shall be effected by the Company.
SECTION 1903. Exercise of Conversion Privilege; Delivery of Common Stock on
Conversion; No Adjustment for Interest or Dividends.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company pursuant
to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names
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(with address) in which the certificate or certificates for shares of Common
Stock which shall be deliverable on such conversion shall be registered, and
shall be accompanied by transfer taxes, if required pursuant to Section 1908.
Each Convertible Security surrendered for conversion shall, unless the shares
deliverable on conversion are to be registered in the same name as the
registration of such Convertible Security, be duly endorsed by, or accompanied
by instruments of transfer in form satisfactory to the Company duly executed by,
the Holder or such Holder's duly authorized attorney.
As promptly as practicable after the surrender of such Convertible Security
and the receipt of such notice and funds, if any, as aforesaid, the Company
shall deliver at such office or agency to such Holder, or on such Holder's
written order, a certificate or certificates for the number of full shares
deliverable upon the conversion of such Convertible Security or portion thereof
in accordance with the provisions of this Article and a check or cash in respect
of any fractional interest in respect of a share of Common Stock arising upon
such conversion as provided in Section 1904. In case any Convertible Security of
a denomination greater than $1,000 shall be surrendered for partial conversion
and subject to Section 302, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on which
such Convertible Security shall have been surrendered (accompanied by the funds,
if any, required by the last paragraph of this Section) and such notice shall
have been received by the Company, as aforesaid, and the person in whose name
any certificate or certificates for shares of Common Stock shall be registrable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
registered as the record holder thereof for all purposes on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Convertible Security
shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment on a date in such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Company, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided however,
that no such payment need be made if there shall exist at the time of conversion
a default in the payment of interest on the Convertible Securities. An amount
equal to such payment shall be paid by the Company on such Interest Payment Date
to the Holder of such Convertible Security on such Regular Record Date,
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Convertible Security converted or for
dividends on any shares issued upon the conversion of such Convertible Security
as provided in this Article.
SECTION 1904. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been convened.
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SECTION 1905. Conversion Price.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
SECTION 1906. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall (i) pay a dividend or make a distribution on
the Common Stock in shares of its capital stock (whether shares of Common Stock
or of capital stock of any other class), (ii) subdivide or reclassify its
outstanding Common Stock into a greater number of securities (including Common
Stock), or (iii) combine or reclassify its outstanding Common Stock into a
smaller number of securities (including Common Stock), the Conversion Price in
effect immediately prior thereto shall be adjusted so that the Holder of any
Convertible Security thereafter surrendered for conversion shall be entitled to
receive the number of shares of capital stock of the Company which such Holder
would have owned or have been entitled to receive after the happening of any of
the events described above had such Convertible Security been convened
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of a subdivision or combination. If, as a result of
an adjustment made pursuant to this subsection (a), the Holder of any
Convertible Security thereafter surrendered for conversion shall become entitled
to receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall be conclusive and
shall be described in a written statement filed with the Trustee and any
conversion agent) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made pursuant
to this subsection (a) of this Section 1906, the Holder of any Convertible
Security thereafter converted shall become entitled to receive any shares or
other securities of the Company other than shares of Common Stock, thereafter
the number of such other shares so received upon conversion of any Convertible
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
shares of Common Stock contained in this Section 1906, and other provisions of
this Article Nineteen with respect to the shares of Common Stock shall apply on
like terms to any such other shares or other securities.
(b) In case the Company shall fix a record date for the issuance of rights
or warrants to all holders of its Common Stock (or securities convertible into
Common Stock) entitling them (for a period expiring within 45 days after such
record date) to subscribe for or purchase Common Stock at a price per share (or
a conversion price per share) less than the current market price per share of
Common Stock (as defined in subsection (d) below) at such record date, the
Conversion Price in effect immediately prior thereto shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares which the aggregate offering price of the
total number of shares so offered (or the aggregate initial conversion price of
the convertible securities so offered) would purchase at such current market
price, and of which the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase (or into which the convertible
securities so offered are initially convertible). Such adjustment shall be made
successively whenever such a record date is fixed, and shall become effective
immediately after such record date. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common Stock
at less than such current market price, and in determining the aggregate
offering price of such shares, there shall be taken into account any
consideration received by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined by the Board of
Directors of the Company. Common Stock owned by or held for the account of the
Company or any majority owned subsidiary shall not be deemed outstanding for the
purpose of any adjustment required under this subsection (b).
75
(c) In case the Company shall fix a record date for making a distribution
to all holders of its Common Stock evidences of its indebtedness or assets
(excluding regular quarterly or other periodic or recurring cash dividends or
distributions and cash dividends or distributions paid from retained earnings of
the Company or dividends or distributions referred to in subsection (a) above)
or rights or warrants to subscribe or purchase (excluding those referred to in
subsection (b) above), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which the numerator shall be the current market price per share (as defined
in subsection (d) below) of the Common Stock on such record date less the then
fair market value (as determined by the Board of Directors of the Company whose
determination shall be conclusive, and described in a certificate filed with the
Trustee) of the portion of the assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one share of Common
Stock, and the denominator shall be the current market price per share (as
defined in subsection (d) below) of the Common Stock. Such adjustment shall be
made successively whenever such a record date is fixed and shall become
effective immediately after such record date. Notwithstanding the foregoing, in
the event that the Company shall distribute any rights or warrants to acquire
capital stock ("Rights") pursuant to this subsection (c), the distribution of
separate certificates representing such Rights subsequent to their initial
distribution (whether or not such distribution shall have occurred prior to the
date of the issuance of such Subordinated Capital Securities) shall be deemed to
be the distribution of such Rights for purposes of this subsection (c); provided
that the Company may, in lieu of making any adjustment pursuant to this
subsection (c) upon a distribution of separate certificates representing such
Rights, make proper provision so that each Holder of such Convertible Security
who converts such Convertible Security (or any portion thereof) (i) before the
record date for such distribution of separate certificates shall be entitled to
receive upon such conversion shares of Common Stock issued with Rights and (ii)
after such record date and prior to the expiration, redemption or termination of
such Rights shall be entitled to receive upon such conversion, in addition to
the shares of Common Stock issuable upon such conversion, the same number of
such Rights as would a holder of the number of shares of Common Stock that such
Convertible Security so converted would have entitled the holder thereof to
purchase in accordance with the terms and provisions of and applicable to the
rights if such Convertible Security were converted immediately prior to the
record date for such distribution. Common Stock owned by or held for the account
of the Company or any majority owned subsidiary shall not be deemed outstanding
for the purpose of any adjustment required under this subsection (c).
(d) For the purpose of any computation under subsection (b) and (c) above,
the current market price per share of Common Stock at any date shall be deemed
to be the average of the daily Closing Prices for the thirty consecutive days
(which are not legal holidays as defined in Section 113) commencing forty-five
days (which are not legal holidays as defined in Section 113) before the day in
question. The Closing Price for any day shall be (i) if the Common Stock is
listed or admitted for trading on any national securities exchange, the last
sale price (regular way), or the average of the closing bid and ask prices if no
sale occurred, of Common Stock on the principal securities exchange on which the
Common Stock is listed, (ii) if not listed as described in (i), the mean between
the closing high bid and low asked quotations of Common Stock in the National
Association of Securities Dealers, Inc., Automated Quotation System, or any
similar system or automated dissemination of quotations of securities prices
then in common use, if so quoted, or (iii) if not quoted as described in clause
(ii), the mean between the high bid and low asked quotations for Common Stock as
reported by the National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and asked quotations for Common Stock
on at least 5 of the 10 preceding days. If none of the conditions set forth
above is met, the Closing Price of Common Stock on any day or the average of
such Closing Prices for any period shall be the fair market value of Common
Stock as determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company.
(e) (i) Nothing contained herein shall be construed to require an
adjustment in the Conversion Price as a result of the issuance of Common Stock
pursuant to, or the granting or exercise of any rights under, the Company's
Shareholder Investment Plan or any successor plans providing for the purchase of
shares of Common Stock by the Company's shareholders or employees at a price not
less than 90% of the "average market price" during the "pricing period" as such
terms, or equivalent terms, are defined in, and as calculated pursuant to, such
plans from time to time.
76
(ii) In addition, no adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subsection (e) (ii) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; further provided, however, that
any adjustments which by reason of this subsection (e) (ii) are not otherwise
required to be made shall be made no later than 3 years after the date on which
occurs an event that requires an adjustment to be made or carried forward.
(iii) All calculations under this Article Nineteen shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
Anything in this Section 1906 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 1906, as it in its discretion shall determine to
be advisable in order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
(f) Whenever the Conversion Price is adjusted, as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other than
the Trustee an Officers' Certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which such adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Price
to the Holder of each Convertible Security at such Holder's last address
appearing on the Security Register provided for in Section 305 of this
Indenture.
(g) In any case in which this Section 1906 provides that an adjustment
shall become effective immediately after a record date for an event, the
Company may defer until the occurrence of such event (i) delivering to the
Holder of any Convertible Security converted after such record date and before
the occurrence of such event the additional shares of Common Stock deliverable
upon such conversion by reason of the adjustment required by such event over and
above the Common Stock deliverable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 1904, provided, however, that the Company shall
deliver to such Holder a due xxxx or other appropriate instrument evidencing
such Holder's rights to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment. If such event does not occur,
no adjustments shall be made pursuant to this Section 1906.
SECTION 1907. Effect of Reclassification. Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or
change of outstanding shares of Common Stock deliverable upon conversion of the
Convertible Securities (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination, but including any change in the shares of Common Stock into two
or more classes or series of securities), (ii) any consolidation or merger to
which the Company is a party (other than a consolidation or merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of its Common Stock) or (iii)
any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the Company, or
such successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act as in force at the date of execution of such supplemental indenture and
comply with the provisions of Article Nine) providing that each Convertible
Security shall be convertible into the kind and amount of shares of stock and
other securities or property, including cash, receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of a number of shares of Common Stock deliverable upon conversion of such
Convertible Securities immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each holder of
77
Convertible Securities, at his address appearing on the Security Register
provided for in Section 305 of this Indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, consolidations, mergers and sales.
SECTION 1908. Taxes on Shares Issued.
The delivery of stock certificates on conversions of Convertible Securities
shall be made without charge to the Holder converting a Convertible Security for
any tax in respect of the issue thereof. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the delivery of stock registered in any name other than of the Holder of any
Convertible Security converted, and the Company shall not be required to deliver
any such stock certificate unless and until the person or persons requesting the
delivery thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
SECTION 1909. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided for
the purpose of conversion of Convertible Securities hereunder require
registration with or approval of any governmental authority under any Federal or
state law before such shares may be validly delivered upon conversion, the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by the rules of
the New York Stock Exchange, list and keep listed for so long as the Common
Stock shall be so listed on such exchange, upon official notice of issuance, all
Common Stock deliverable upon conversion of the Convertible Securities.
SECTION 1910. Responsibility of Trustee.
Neither the Trustee nor any authenticating agent nor any conversion agent
shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any authenticating agent nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security,
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
Section 601, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Convertible Security for the purpose of conversion or
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
SECTION 1911. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution) on
the Common Stock (other than in cash out of its current or retained earnings);
or
(b) the Company shall authorize the granting to the holders of the Common
Stock of rights or warrants to subscribe for or purchase any share of any class
or any other rights or warrants, or
(c) of any reclassification or change of the Common Stock (other than a
subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value) or,
of any consolidation or merger to which the Company is a party and for which
approval of any
78
stockholders of the Corporation is required or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; the Company shall cause to be filed with the Trustee and the
Company shall cause to be mailed to each holder of Convertible Securities at his
address appearing on the Security Register, provided for in Section 305 of this
Indenture, as promptly as possible but in any event no less than fifteen days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up or any adjustment in the Conversion Price required by
this Article Nineteen.
SECTION 1912. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued Common Stock,
such number of shares of Common Stock as shall then be deliverable upon the
conversion of all outstanding Convertible Securities.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANKAMERICA CORPORATION
By __________________________________
(CORPORATE SEAL] Senior Vice President
Attest:
----------------------------------
Secretary
MANUFACTURERS HANOVER TRUST COMPANY OF
CALIFORNIA
By ___________________________________
[CORPORATE SEAL] Assistant Vice President
Attest:
----------------------------------
Assistant Secretary
79
STATE OF CALIFORNIA }
} ss.
CITY AND COUNTY OF SAN FRANCISCO }
On this ____th day of January, 1992 before me, a notary public in and for
said State, personally appeared XXXXXXX XXXXXXXXX, known to me to be a senior
vice president of BANKAMERICA CORPORATION, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
[NOTARIAL SEAL] ____________________________________
NOTARY PUBLIC
In and for the State of California with principal
office in the City and County of San Francisco.
My Commission Expires
80
STATE OF CALIFORNIA }
} ss.
CITY AND COUNTY OF SAN FRANCISCO }
On this __th day of January, 1992 before me, a notary public in and for
said State, personally appeared XXXXX XXXXXXXX, known to me to be an assistant
vice president of MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrumenL
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
[NOTARIAL SEAL] ____________________________________
NOTARY PUBLIC
In and for the State of California with principal
office in the City and County of San Francisco.
My Commission Expires
X-0
XXXXXXX X-0
[Form of Certificate of Beneficial Ownership by a non-United States Person
or by Certain Other Persons]
Certificate
BANKAMERICA CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of November 1, 1991 (the
"Indenture") between BankAmerica Corporation and Manufacturers Hanover Trust
Company of California, as trustee (the "Trustee") covering the above-captioned
Debt Securities. This is to certify that as of the date hereof, _______________
principal amount of Debt Securities credited to you for our account (i) is owned
by persons that are not United States Persons, as defined below; (ii) is owned
by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the Notes through
foreign branches of United States financial institutions and who hold the Notes
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution encloses
herewith a certificate in the form of Exhibit A-2 to the Indenture); or (iii) is
owned by United States or foreign financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Notes for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions.
[Insert if certificate does not relate to an interest payment--We undertake
to advise you by tested telex followed by written confirmation if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then appear in your
books as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize you
to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States federal income taxation regardless of the source of its
income.
A-2
[This certificate excepts and does not relate to ______________ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered and interest cannot be paid until
we are able to so certify with respect to such principal amount of Debt
Securities.]*
Dated:___________________
[To be dated on or after
_________________ (the
date determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer Security]
---------------------------------------------------------
(Authorized Signatory)
Name:
---------------------------------------------------------
Title:
---------------------------------------------------------
----------
* Delete if inappropriate
EXHIBIT A-2
A-3
[Form of Certificate of Status as a
Foreign Branch of a United States Flnancial Institution]
Certificate
BANKAMERICA CORPORATION
[Insert title or sufficient description of Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of November 1, 1991,
(the "Indenture"), between BankAmerica Corporation and Manufacturers Hanover
Trust Company of California, as trustee, relating to the offering of the
above-captioned Debt Securities (the "Debt Securities"). Unless herein defined,
terms used herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
Dated:___________________
[To be dated on or after
_________________ (the
date determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer Security]
---------------------------------------------------------
(Authorized Signatory)
Name:
---------------------------------------------------------
Title:
---------------------------------------------------------
B-1
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of
a Temporary Global Security or to Obtain Interest Prior to Exchange]
Certificate
BANKAMERICA CORPORATION
[Insert title or sufficient description of Debt Securities to be delivered]
We refer to that portion, ___________________ of the Global Security
representing the above-captioned issue (which is herewith submitted to be
exchanged for definitive Debt Securities] * [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion"). This is to certify, pursuant to
the Indenture dated as of November 1, 1991 (the "Indenture") between BankAmerica
Corporation and Manufacturers Hanover Trust Company of California, as trustee
(the "Trustee"), that we have received in writing, by tested telex or by
electronic transmission from member organizations with respect to each of the
persons appearing in our records as being entitled to a beneficial interest in
the Submitted Portion a Certificate of Beneficial Ownership by a Non-United
States Person or by Certain Other Persons, [and, in some cases, a Certificate of
Status as a Foreign Branch of a United States Financial Institution, authorizing
us to inform the issuer or the issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986 and the regulations thereunder]* substantially in the form of Exhibit A-l
[and A-2]* to the Indenture.
We hereby request that you deliver to the office of ___________________ in
___________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated: __________________________
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[CEDEL S.A.]
By __________________________
----------
* Delete if inappropriate.
BANKAMERICA CORPORATION
TO
CHEMICAL TRUST COMPANY OF CALIFORNIA
Trustee
-----------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 8, 1992
-----------------
Supplemental to Indenture
Dated as of November 1, 1991
FIRST BUPPLEMENTAL INDENTURE
First Supplemental Indenture (the "Indenture"), dated as of September 8,
1992, between BankAmerica Corporation, a Delaware corporation (hereinafter
called the "Company"), having its principal office at Bank of America Center,
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and Chemical Trust
Company of California, a California corporation (hereinafter called "Trustee"),
having its principal corporate trust office at 00 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000.
The Company has previously executed and delivered to the Trustee an
Indenture dated as of November 1, 1991 (hereinafter called the "Original
Indenture"), providing for the issuance from time to time of one or more series
of securities (herein called the "Debt Securities").
The Company desires and has requested the Trustee pursuant to Section
901(5) of the Original Indenture to join with it in the execution and delivery
of this Indenture in order to amend the Original Indenture in a First
Supplemental Indenture as set forth herein with respect solely to series of Debt
Securities created and issued on or after the date hereof.
Section 901(5) of the Original Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any Holders to change or eliminate any of the provisions of the Original
Indenture, provided that any such change or elimination (a) shall become
effective only when there is no Debt Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision or (b) shall not apply to any Debt Security
Outstanding.
All things necessary to make this Indenture a valid agreement of the
Company and the Trustee and a valid amendment to the Original Indenture have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debt Securities of any such series:
(a) that the definitions in Section 101 of "Controlled Subsidiary" and
"Voting Stock" are hereby deleted;
(b) that Subsections (1) and (2) of Section 501, "Events of Default", are
hereby amended to read in full as follows:
"(1) the entry of a decree or order for relief in respect of the Company by
a court having jurisdiction in the promises in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
(2) the commencement by the Company of a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or the consent by the Company
to the entry of a decree or order for relief in an involuntary case under any
such law; or";
(c) that the first sentence of Section 902 is hereby amended to delete the
first proviso therein relating to changes in the required ownership set forth in
the definition of Controlled Subsidiary in Section 101;
(d) that Section 1005, "Limitation on Disposition of Voting Stock of, and
Merger and Sale of Assets by, the Bank" is hereby deleted; and
(e) that nothing in this Indenture shall: (i) apply to, or alter the rights
and remedies conferred by the Original Indenture upon, Debt Securities of any
series created and issued prior to the date hereof or (ii) affect the rights,
remedies and duties of the Trustee under the Original Indenture with respect to
such Debt Securities.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BANKAMERICA CORPORATION
By:/S/ X.X. XXXXXXX
--------------------------
Vice President
[Corporate Seal]
Attest:
/S/ [ILLEGIBLE]
--------------------------
Secretary
CHEMICAL TRUST COMPANY OF CALIFORNIA
By:/S/ XXXXX XXXXXXXX
--------------------------
Assistant Vice President
[Corporate Seal]
Attest:
/S/ [ILLEGIBLE]
--------------------------
Asst. Secretary
STATE OF CALIFORNIA )
) ss.
CITY AND COUNTY OF SAN FRANCISCO )
On this 14th day of September, 1992 before me, a notary public in and for
said State, personally appeared XXXXX X. XXXXXXX, known to me to be a vice
president of BANKAMERICA CORPORATION, one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
----------------------------
[NOTARIAL SEAL] NOTARY PUBLIC
in and for the State of California with
principal office in the City and County
of San Francisco
My Commission Expires 10-7-94
STATE OF CALIFORNIA )
) ss.
CITY AND COUNTY OF SAN FRANCISCO )
On this 14th day of September, 1992 before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxxx, known to me to be an assistant
vice president of CHEMICAL TRUST COMPANY OF CALIFORNIA, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx
----------------------------
[NOTARIAL SEAL] NOTARY PUBLIC
in and for the State of California with
principal office in the City and County
of San Francisco
My Commission Expires 9/30/94
--------------------------------------------------------------------------------
BankAmerica Corporation
NationsBank (DE) Corporation
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SECOND SUPPLEMENTAL INDENTURE
Dated as of September 15, 1998
Supplementing the Indenture, dated
as of November 1, 1991, between
BankAmerica Corporation and
Chase Manhattan Bank and Trust Company, National Association (successor to
Manufacturers Hanover Trust Company of California), as Trustee
--------------------------------------------------------------------------------
SECOND SUPPLEMENTAL INDENTURE, dated as of September 15, 1998 (the
"Second Supplemental Indenture"), among NationsBank (DE) Corporation, a Delaware
corporation ("NationsBank (DE)") and a direct wholly owned subsidiary of
NationsBank Corporation, a North Carolina corporation ("NationsBank"),
BankAmerica Corporation, a Delaware corporation ("BankAmerica"), and Chase
Manhattan Bank and Trust Company, National Association (successor to
Manufacturers Hanover Trust Company of California), as Trustee (the "Trustee")
under the Indenture referred to herein;
WHEREAS, BankAmerica and the Trustee heretofore executed and delivered
an Indenture, dated as of November 1, 1991, as amended by a First Supplemental
Indenture dated as of September 8, 1992 (the "Indenture"); and
WHEREAS, pursuant to the Indenture BankAmerica issued and the Trustee
authenticated and delivered one or more series of BankAmerica's Notes (the
"Securities"); and
WHEREAS, NationsBank and BankAmerica have entered into the Agreement and
Plan of Reorganization, dated as of April 10, 1998, pursuant to which (i)
NationsBank will merge (the "Reincorporation Merger") with and into NationsBank
(DE), in accordance with the terms and conditions of the Plan of Reincorporation
Merger by and between NationsBank and NationsBank (DE), dated as of August 3,
1998, with NationsBank (DE) as the surviving corporation in the Reincorporation
Merger, and (ii) BankAmerica will thereafter merge (the "Merger," and together
with the Reincorporation Merger, the "Reorganization") with and into NationsBank
(DE), with NationsBank (DE) as the surviving corporation in the Merger; and
WHEREAS, the Reorganization is expected to be consummated on September
30, 1998; and
WHEREAS, Section 801 of the Indenture provides that in the case of the
Reorganization, NationsBank (DE) shall expressly assume by supplemental
indenture all the obligations under the Securities and the Indenture on the part
of BankAmerica to be performed or observed; and
WHEREAS, Section 1414 of the Indenture requires that, as a result of the
Reorganization, a supplemental indenture be entered into providing that the
Holder of each Security then Outstanding shall have the right thereafter to
receive securities of NationsBank (DE) on the Capital Exchange Date for such
Security with a Market Value equal to the principal amount of such Security; and
WHEREAS, Section 901(1) of the Indenture provides that BankAmerica and
the Trustee may amend the Indenture and the Securities without notice to or
consent of any Holders of the Securities in order to comply with Article Eight
of the Indenture; and
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WHEREAS, Section 901(9) of the Indenture provides that BankAmerica and
the Trustee may amend the Indenture and the Securities without notice to or
consent of any Holders of the Securities in order to make provisions with
respect to matters arising under the Indenture which shall not be inconsistent
with any provision in the Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; and
WHEREAS, this Second Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of each of NationsBank (DE) and
BankAmerica.
NOW, THEREFORE, NationsBank (DE), BankAmerica and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
SECTION 1.1. Assumption of the Securities. NationsBank (DE) hereby
expressly assumes the due and punctual payment of the principal of (and premium,
if any) and interest (including all additional amounts, if any, payable pursuant
to Section 1006) on all the Securities and any related coupons and the
performance of every covenant of the Indenture on the part of BankAmerica to be
performed or observed.
SECTION 1.2. Trustee's Acceptance. The Trustee hereby accepts this
Second Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
SECTION 1.3. Rights of Certain Holders in the Event of an Exchange Date.
The Holder of each Security Outstanding on the date of the consummation of the
Merger shall have the right thereafter to receive securities of NationsBank (DE)
on the Capital Exchange Date for such Security with a Market Value equal to the
principal amount of such Security.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. Effect of Supplemental Indenture. Upon the later to occur
of (i) the execution and delivery of this Second Supplemental Indenture by
NationsBank (DE), BankAmerica and the Trustee and (ii) the consummation of the
Reorganization, the Indenture shall be supplemented in accordance herewith, and
this Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
3
SECTION 2.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 2.3. Indenture and Supplemental Indenture Construed Together.
This Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
SECTION 2.4. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Second Supplemental Indenture is in all respects
confirmed and preserved.
SECTION 2.5. Conflict with Trust Indenture Act. If any provision of this
Second Supplemental Indenture limits, qualifies or conflicts with any provision
of the Trust Indenture Act ("TIA") that is required under the TIA to be part of
and govern any provision of this Second Supplemental Indenture, the provision of
the TIA shall control. If any provision of this Second Supplemental Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the provision of the TIA shall be deemed to apply to the Indenture as
so modified or to be excluded by this Second Supplemental Indenture, as the case
may be.
SECTION 2.6. Severability. In case any provision in this Second
Supplemental Indenture 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 2.7. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 2.8. Headings. The Article and Section headings of this Second
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 2.9. Benefits of Second Supplemental Indenture, etc. Nothing in
this Second Supplemental Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Securities, any
benefit of any legal or equitable right, remedy or claim under the Indenture,
this Second Supplemental Indenture or the Securities.
SECTION 2.10. Successors. All agreements of NationsBank (DE) in this
Second Supplemental Indenture shall bind its successors. All agreements of the
Trustee in this Second Supplemental Indenture shall bind its successors.
4
SECTION 2.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of BankAmerica and NationsBank
(DE), and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to, and shall not be responsible for, the
validity or sufficiency of this Second Supplemental Indenture.
SECTION 2.12. Certain Duties and Responsibilities of the Trustees. In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the Trustee, whether or not
elsewhere herein so provided.
SECTION 2.13. Governing Law. This Second Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the jurisdiction
which govern the Indenture and its construction.
SECTION 2.14. Counterpart originals. The parties may sign any number of
copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed as of the date first written above.
NationsBank (DE) Corporation
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
Attest:
/s/ Xxxxx X. Xxxxx
-----------------------------
Secretary
BankAmerica Corporation
By: /s/ X.X. Xxxxxxx
---------------------------------
Name: X.X. Xxxxxxx
Title: Senior Vice President and
Assistant Treasurer
Attest:
/s/ Xxxxxx Xxxxxxx
-----------------------------
Secretary
Chase Manhattan Bank and Trust Company,
National Association, as Trustee
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
Attest:
[illegible signature]
-----------------------------
Assistant Vice President
6
