1
Exhibit 4.1
-------------------------------------------------------------------------------
NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
-------------------------------------------------------------------------------
SENIOR INDENTURE
-------------------------------------------------------------------------------
Dated as of _______, 1999
Senior Debt Securities
-------------------------------------------------------------------------------
2
TABLE OF CONTENTS
-----------------
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions....................................................................1
Act............................................................................2
Additional Amounts.............................................................2
Affiliate......................................................................2
Authenticating Agent...........................................................2
Authorized Newspaper...........................................................2
Bank...........................................................................2
Bearer Security................................................................2
Board of Directors.............................................................3
Board Resolution...............................................................3
Business Day...................................................................3
Capital Stock..................................................................3
Commission.....................................................................3
Company........................................................................3
Company Request and Company Order..............................................3
Constituent Bank...............................................................3
Corporate Trust Office.........................................................3
Corporation....................................................................3
Coupon.........................................................................3
Defaulted Interest.............................................................3
Dollars of $...................................................................3
Event of Default...............................................................4
Government Obligations.........................................................4
Holder.........................................................................4
Indenture......................................................................4
Independent Public Accountants.................................................4
Interest.......................................................................5
Interest Payment Date..........................................................5
Legal Holiday..................................................................5
Maturity.......................................................................5
Officers' Certificate..........................................................5
Opinion of Counsel.............................................................5
Original Issue Discount Security...............................................5
Outstanding....................................................................5
Paying Agent...................................................................6
Person.........................................................................6
Place of Payment...............................................................6
Predecessor Security...........................................................7
i
3
Page
Principal Consituent Bank......................................................7
Redemption Date................................................................7
Redemption Price...............................................................7
Registered Security............................................................7
Regular Record Date............................................................7
Responsible Officer............................................................7
Security or Securities.........................................................7
Security Register and Security Registrar.......................................7
Special Record Date............................................................7
Stated Maturity................................................................7
Subsidiary.....................................................................8
Trust Indenture Act............................................................8
Trustee........................................................................8
United States..................................................................8
United States Alien............................................................8
U.S. Depository or Depository..................................................8
Vice President.................................................................8
Voting Stock...................................................................8
Section 102. Compliance Certificates and Opinions ..........................................9
Section 103. Form of Documents Delivered to Trustee.........................................9
Section 104. Acts of Holders...............................................................10
Section 105. Notices, etc., to Trustee and Company.........................................12
Section 106. Notice to Holders; Waiver.....................................................12
Section 107. Language of Notices...........................................................13
Section 108. Conflict with Trust Indenture Act.............................................13
Section 109. Effect of Headings and Table of Contents......................................13
Section 110. Successors and Assigns........................................................13
Section 111. Separability Clause...........................................................14
Section 112. Benefits of Indenture.........................................................14
Section 113. Governing Law.................................................................14
Section 114. Legal Holidays................................................................14
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally...............................................................14
Section 202. Form of Trustee's Certificate of Authentication...............................15
Section 203. Securities in Global Form.....................................................15
ii
4
Page
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.......................................16
Section 302. Denominations..............................................................20
Section 303. Execution, Authentication, Delivery and Dating.............................20
Section 304. Temporary Securities.......................................................22
Section 305. Registration, Transfer and Exchange........................................22
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...........................26
Section 307. Payment of Interest; Interest Rights Preserved.............................27
Section 308. Persons Deemed Owners......................................................28
Section 309. Cancellation...............................................................28
Section 310. Computation of Interest....................................................29
Section 311. CUSIP Numbers..............................................................29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture....................................29
Section 402. Application of Trust Money.................................................31
Section 403. Satisfaction, Discharge and Defeasance of Securities of Any Series.........31
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..........................................................33
Section 502. Acceleration of Maturity; Rescission and Annulment.........................34
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............35
Section 504. Trustee May File Proofs of Claim...........................................36
Section 505. Trustee May Enforce Claims without Possession of Securities
or Coupons.................................................................37
Section 506. Application of Money Collected.............................................37
Section 507. Limitation on Suits........................................................38
Section 508. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Additional Amounts............................................38
Section 509. Restoration of Rights and Remedies.........................................38
Section 510. Rights and Remedies Cumulative.............................................39
Section 511. Delay or Omission Not Waiver...............................................39
Section 512. Control by Holders.........................................................39
Section 513. Waiver of Past Defaults....................................................39
Section 514. Waiver of Stay or Extension Laws...........................................40
iii
5
Page
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.........................................................40
Section 602. Certain Rights of Trustee..................................................41
Section 603. Not Responsible for Recitals or Issuance of Securities.....................42
Section 604. May Hold Securities........................................................42
Section 605. Money Held in Trust........................................................42
Section 606. Compensation and Reimbursement.............................................43
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests.............43
Section 608. Resignation and Removal; Appointment of Successor..........................44
Section 609. Acceptance of Appointment by Successor.....................................45
Section 610. Merger, Conversion, Consolidation or Succession to Business................46
Section 611. Appointment of Authenticating Agent........................................47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders..................48
Section 702. Preservation of Information; Communications to Holders.....................49
Section 703. Reports by Trustee.........................................................49
Section 704. Reports by Company.........................................................49
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate Etc., Only on Certain Terms........................50
Section 802. Successor Corporation Substituted for Company..............................51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.........................52
Section 902. Supplemental Indentures with Consent of Holders............................53
Section 903. Execution of Supplemental Indentures.......................................54
Section 904. Effect of Supplemental Indentures..........................................54
Section 905. Conformity with Trust Indenture Act........................................54
Section 906. Reference in Securities to Supplemental Indentures.........................54
iv
6
Page
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest........................55
Section 1002. Maintenance of Office or Agency............................................55
Section 1003. Money for Securities Payments to Be Held in Trust..........................56
Section 1004. Additional Amounts.........................................................57
Section 1005. Statement as to Compliance; Notice of Certain Defaults.....................58
Section 1006. Limitation Upon Sale or Issuance of Capital Stock of Certain Subsidiaries..59
Section 1007. Limitation on Liens........................................................60
Section 1008. Limitation on Certain Acquisitions.........................................60
Section 1009. Payment of Taxes and Other Claims..........................................61
Section 1010. Corporate Existence........................................................61
Section 1011. Waiver of Certain Covenants................................................61
Section 1012 Calculation of Original Issue Discount.....................................61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article...................................................62
Section 1102. Election to Redeem; Notice to Trustee......................................62
Section 1103. Selection by Trustee of Securities to be Redeemed..........................62
Section 1104. Notice of Redemption.......................................................62
Section 1105. Deposit of Redemption Price................................................63
Section 1106. Securities Payable on Redemption Date......................................64
Section 1107. Securities Redeemed in Part................................................64
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article...................................................65
Section 1202. Satisfaction of Sinking Fund Payments with Securities......................65
Section 1203. Redemption of Securities for Sinking Fund..................................66
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article...................................................66
v
7
Page
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
Section 1401. Purposes for Which Meetings May Be Called..................................67
Section 1402. Call, Notice and Place of Meetings.........................................67
Section 1403. Persons Entitled to Vote at Meetings.......................................67
Section 1404. Quorum; Action.............................................................67
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meeting.........68
Section 1406. Counting Votes and Recording Action of Meetings............................69
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 1501. Securities in Foreign Currencies...........................................70
vi
8
NATIONAL CITY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Senior Indenture, dated as of , 1999
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
sec.310(a)(1)........................................... 607
(a)(2)........................................... 607
(a)(5)........................................... 607
(b).............................................. 607
sec.311(a)............................................... 604
(b).............................................. 604
(b)(2)........................................... 108
sec.312(a)............................................... 701, 702(a)
(b).............................................. 702(a)
(c).............................................. 702(b)
sec.313(a)............................................... 703 (a) , 703 (b)
(b)(2)........................................... 108
(c).............................................. 703(c)
(d).............................................. 703(c)
sec.314(a)............................................... 704
(c)(1)........................................... 102
(c)(2)........................................... 102
(c)(3)........................................... 108
(e).............................................. 102
sec.315(a)............................................... 108
(b).............................................. 601
(c).............................................. 108
(d).............................................. 108
(d)(1)........................................... 108
(d)(2)........................................... 108
(d)(3)........................................... 108
(e).............................................. 108
sec.316(a)............................................... 104
(a)(1)(A)........................................ 512
(a)(1)(B)........................................ 513
(b).............................................. 508
(c).............................................. 104
sec.317(a)(1)............................................ 505
(a)(2)........................................... 504
(b).............................................. 1003
sec.318(a)............................................... 108
---------------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Senior Indenture.
9
SENIOR INDENTURE, dated as of ________, 1999 (the
"Indenture"), among NATIONAL CITY CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company"), having its principal office at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxx 00000, and THE BANK OF NEW YORK, a New York banking corporation, having its
principal office at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286,
as Trustee (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
and unsubordinated debentures, notes or other evidences of indebtedness
(hereinafter called the "Securities"), unlimited as to principal amount, to bear
such rates of interest, to mature at such time or times, to be issued in one or
more series and to have such other provisions as shall be fixed as hereinafter
provided.
The Company has duly authorized the execution and delivery of
this Indenture and all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof or Coupons appertaining to any Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting
10
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 at the date of such computation;
(4) the words "herein", "hereof", "hereto" and
"hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision; and
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act", when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting Securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Legal Holidays, and
of general circulation in each place in connection with which the term is used
or in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bank" means (i) any institution organized under the laws of
the United States, any State of the United States, the District of Columbia, any
territory of the United States, Puerto Rico, Guam, American Samoa or the Virgin
Islands which (a) accepts deposits that the depositor has a legal right to
withdraw on demand, and (b) engages in the business of making commercial loans
and (ii) any trust company organized under any of the foregoing laws.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
2
11
"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act for the Company
hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", except as may otherwise be provided herein or
in any Security, means any day, other than a Saturday or a Sunday, that is
neither a Legal Holiday nor a day on which banking institutions are authorized
or required by law, regulation or executive order to close in The City of New
York.
"Capital Stock" means, as to shares of a particular
corporation, outstanding shares of stock of any class whether now or hereafter
authorized, irrespective of whether such class shall be limited to a fixed sum
or percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of 1934
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board of Directors, a Vice Chairman, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Constituent Bank" means any Subsidiary which is a Bank.
"Corporate Trust Office" means, the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286,
Attention: Corporate Trust Administration.
"Corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit in
the currency of the United States, except as may otherwise be provided herein or
in any Security.
3
12
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", with respect to any Securities
unless otherwise specified herein or therein, means (i) direct obligations of
the United States of America or the government or governments which issued the
currency, currency unit or composite currency in which any Securities are
payable, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government or
governments which issued the currency, currency unit or composite currency in
which such Securities are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America
or such other government or governments, which, in either case, are not callable
or redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder", in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register and,
in the case of any Bearer Security, means the bearer thereof and, in the case of
any Coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and with respect to any Security shall include the terms of such Securities
established as contemplated by Section 301; provided, however, that, if at any
time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities for
which such Person is Trustee, this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the or those particular series of Securities for
which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is Trustee, regardless of when such
terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"Independent Public Accountants" means accountants or a firm
of accountants that are independent public accountants with respect to the
Company within the meaning of the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder who may be the
independent public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountants or firm shall be entitled
to rely upon any Opinion of Counsel as to the interpretation of any legal
matters relating to the Indenture or certificates required to be provided
hereunder.
4
13
"interest", with respect to any Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, with respect to any Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Legal Holiday", except as otherwise may be provided herein or
in any Securities, with respect to any Place of Payment or other location, means
a Saturday, a Sunday or a day on which banking institutions or trust companies
in such Place of Payment or other location are not authorized or obligated to be
open.
"Maturity", with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel", except as otherwise provided herein or
in any Security, means a written Opinion of Counsel, who may be an employee of
or counsel for the Company or other counsel who shall be reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount less than
the principal thereof to be due and payable upon acceleration pursuant to
Section 502.
"Outstanding", with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or the Security Registrar or
delivered to the Trustee or the Security
Registrar for cancellation;
(ii) Securities, or portions thereof for whose
payment or redemption or repayment at the
option of the Holder money in the necessary
amount has been theretofore deposited with
the Trustee or any Paying Agent (other than
the Company) in trust or set aside and
segregated in trust by the Company (if the
Company shall act as its own Paying Agent)
for the Holders of such Securities and any
Coupons appertaining thereto, provided
that, if such Securities are to be
redeemed, notice of such redemption has been
duly given pursuant to this Indenture or
provision therefor satisfactory to the
Trustee has been made;
5
14
(iii) Securities, except to the extent provided in
Section 403, with respect to which the
Company has effected defeasance and/or
covenant defeasance pursuant to Section 403
hereof; and
(iv) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of
which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been
presented to the Trustee proof satisfactory
to it that such Securities are held by a
bona fide purchaser in whose hands such
Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes and for purposes of
making the calculations required by Section 313 of the Trust Indenture Act, (i)
the principal amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be deemed to be
outstanding for such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration pursuant to Section 502 at the time of such
determination or calculation, and (ii) the principal amount of any Security
denominated other than in Dollars that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the Dollar equivalent, determined by the Company as of
the date such Security is originally issued by the Company, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (i) above) of such Security, and (iii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making any such calculation or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Security or Coupon
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the
place or places where the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in or pursuant to Section
301(9) or Section 1002.
6
15
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.
"Principal Constituent Bank" means any Constituent Bank the
consolidated assets of which as set forth in the most recent statement of
condition of such Bank constitute 15% or more of the Company's consolidated
assets as determined from the most recent statements of condition of the
Company.
"Redemption Date", with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant
to Section 201 which is registered and the transfer or exchange thereof is
registrable in the Security Register.
"Regular Record Date" for the interest payable on any
Registered Security on any Interest Payment Date therefor means the date, if
any, specified in such Security as the "Regular Record Date".
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee in its Corporate Trust Office and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Security" or "Securities" means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on any registered Security means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a Coupon representing
7
16
such installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable, as
such date may be extended pursuant to Section 308.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States", except as otherwise provided herein or in any
Security, means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided herein or
in any Security, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities, the
Person designated as U.S. Depository by the Company pursuant to Section 301,
which must be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided pursuant to Section 301 with respect to
any Security, any successor to such Person. If at any time there is more than
one such Person, "U.S. Depository" or "Depository" shall mean, with respect to
any Securities, the qualifying entity which has been appointed with respect to
such Securities.
"Vice President", with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock of a corporation of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
corporation provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be considered
voting stock whether or not such event shall have happened.
8
17
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
Opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture and in any applicable
Security (except Section 1005) shall include:
(1) a statement that each individual signing
such certificate or opinion has read such condition or
covenant and the definitions herein and in any applicable
Security relating thereto;
(2) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of each
such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion
as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the
opinion of each such individual, such condition or covenant
has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the
9
18
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need not,
be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fourteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 315 of
the Trust Indenture Act) conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1406.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set forth or
determined in an Officers' Certificate, or established in one or more indentures
supplemental hereto, pursuant to Section 301, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and a U.S. Depository that
is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Trustee shall fix a record date, which shall be not more
than 30 days prior to the first solicitation of such Holders, for the purpose of
determining the Persons who are beneficial owners of interest in any permanent
global Security held by a U.S. Depository entitled under the procedures of such
U.S. Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or
10
19
other action provided in this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice, consent,
waiver or other action shall be valid or effective if made, given or taken more
than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement and
the date of termination of holding the same, shall be proved by the Security
Register.
(d) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement and the
date of termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any Bank,
banker or other depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of the commencement and the date of
termination of holding the same may also be proved in any other manner which the
Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may at their option, by Board
Resolutions, fix in advance a record date, which shall be not more than 30 days
prior to the first solicitation of such Holders, for the determination of
Holders of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of Registered
Securities of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
deemed
11
20
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the
Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to the
attention of its Treasurer at the address of its principal
office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to a
Responsible Officer of the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein or in any
Security, where this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given
to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered
Security affected by such event, at his address as it appears
in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving
of such Notice; and
(2) such notice shall be sufficiently given
to Holders of Bearer Securities, if any, if published in an
Authorized Newspaper in The City of New York and, if such
Securities are then listed on any stock exchange outside the
United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so
requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and not
later than the latest date prescribed for the giving of such
notice.
12
21
In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearers Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company so elects, any published
notice may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed pursuant to Section 318(c) of the Trust Indenture Act, such
imposed duties shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
13
22
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any
Coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder and the
Holders of Securities or Coupon, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and the Coupons shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each case,
performed in said state.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture, any
Security or Coupon other than a provision in any Security or any Coupon that
specifically states that such provision shall apply in lieu of this Section)
payment of interest or any Additional Amounts or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and
temporary global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or any
indenture supplemental hereto and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security, as
evidenced by their execution of such Security.
14
23
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By _____________________
Authorized signatory
Section 203. Securities in Global Form.
If Securities of a series are issuable in global form, any
such Security may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the immediately preceding sentence shall
apply to any Security represented by a Security in global form if such Security
was never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of the immediately preceding sentence.
15
24
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, the Person or Persons specified pursuant to
Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to one or more Board Resolutions, and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of the Securities and the
series in which such Securities shall be included;
(2) any limit upon the aggregate principal
amount of the Securities of such title or the Securities of
such series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 or the terms of such
Securities);
(3) whether Securities of the series are to
be issuable as Registered Securities, Bearer Securities or
both and, if the Securities are to be issuable exclusively or
alternatively as Bearer Securities, whether the Bearer
Securities are to be issuable with Coupons, without Coupons or
both, and any restrictions applicable to the offer, sale or
delivery of the Bearer Securities and the terms, if any, upon
which Bearer Securities may be exchanged for Registered
Securities and vice versa;
(4) whether any Securities of the series are
to be issuable initially or otherwise in global form and, if
so, (i) whether beneficial owners of interests in any such
global Security may exchange such interest for Securities of
such series and of like tenor of any authorized form and
denomination and the circumstances under which any such
exchanges may occur, if other than in the manner specified
16
25
in Section 305, (ii) the name of the depository or the U.S.
Depository, as the case may be, with respect to any global
Security and (iii) the manner in which interest payable on a
global Security will be paid;
(5) the date as of which any Bearer
Securities of the series and any global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of
the series to be issued;
(6) if Securities of the series are to be
issuable as Bearer Securities, whether interest in respect of
any portion of a temporary Bearer Security in global form
(representing all of the Outstanding Bearer Securities of the
series) payable in respect of an Interest Payment Date prior
to the exchange of such temporary Bearer Security for
definitive Securities of the series shall be paid to any
clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by
a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date;
(7) the date or dates, or the method, if
any, by which such date or dates shall be determined, on which
the principal of such Securities is payable;
(8) the rate or rates at which such
Securities shall bear interest, if any, or the method, if any,
by which such rate or rates are to be determined, the date or
dates, if any, from which such interest shall accrue or the
method, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such
interest shall be payable and the Regular Record Date, if any,
for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall be
payable, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(9) the place or places, if any, in addition
to or other than the Borough of Manhattan, The City of New
York, where the principal of (and premium, if any) and
interest (including Additional Amounts), if any, on such
Securities shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and
notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(10) whether the Securities of the series or
any of them are to be redeemable at the option of the Company
and, if so, the period or periods within which, the price or
prices at which and the other terms and conditions upon which
such Securities may be redeemed, in whole or in part, at the
option of the Company;
17
26
(11) whether the Company is obligated to
redeem, or purchase Securities of the series or any of them
pursuant to any sinking fund or at the option of any Holder
thereof and, if so, the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and any
provisions for the remarketing of the Securities of the series
so redeemed or purchased;
(12) the denominations in which Registered
Securities of the series, if any, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof, and the denominations in which Bearer Securities of
the series, if any, shall be issuable if other than the
denomination of $5,000;
(13) if other than the principal amount
thereof, the portion of the principal amount of the Securities
of the series of any of them which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the method by which such portion is to be
determined;
(14) if other than such coin or currency of
the United States of America as at the time of payment is
legal tender for payment of public or private debts, the coin
or currency, composite currencies or currency unit or units in
which payment of the principal of (and premium, if any) or
interest, if any, on or any Additional Amounts in respect of
the Securities of the series or any of them shall be payable;
(15) if the principal of (and premium, if
any) or interest, if any, on or any Additional Amounts in
respect of the Securities of the series or any of them are to
be payable, at the election of the Company or a Holder
thereof, in a coin or currency, composite currencies or
currency unit or units other than that in which the Securities
of the series or any of them are stated to be payable, the
period or periods within which, and the terms and conditions
upon which, such election may be made;
(16) whether the amount of payments of
principal of (and premium, if any) or interest (including
Additional Amounts), if any, on the Securities of the series
may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined and paid
or payable;
(17) whether the principal of (and premium,
if any) or interest (including Additional Amounts), if any, on
the Securities of the series are to be payable, at the
election of the Company or any Holder thereof or otherwise, in
a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such
Securities or any of them are denominated or stated to be
payable, the period or periods within which, and the other
terms and
18
27
conditions upon which, such election, if any, may be made, and
the time and manner of determining the exchange rate between
the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities or
any of them are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite
currency or currencies in which such Securities or any of them
are to be so payable;
(18) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company
with respect to the Securities of the series or any of them,
whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth
herein;
(19) the applicability, if any, of Section
403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Section 403;
(20) if the Securities of the series or any
of them are to be issued upon the exercise of warrants, the
time, manner and place for such Securities to be authenticated
and delivered;
(21) if the Securities of the series are to
be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions;
(22) if there is more than one Trustee, the
identity of the Trustee and, if not the Trustee, the identity
of each Security Registrar, Paying Agent and/or Authenticating
Agent with respect to the Securities of the series;
(23) whether any of the Securities of a
series shall be issued as original Issue Discount Securities;
and
(24) any other terms of the Securities of
the series or any of them (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided by the Company in or pursuant to one or more Board
Resolutions and set forth in such Officers' Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Securities. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series.
19
28
If any of the terms of the Securities of any series were
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Denominations.
Unless otherwise established with respect to any Securities
pursuant to Section 301, the Registered Securities of each series, if any,
denominated in Dollars shall be issuable in registered form without coupons in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of each series, if any, denominated in Dollars shall be issuable in
the denomination of $5,000. Securities not denominated in Dollars shall be
issuable in such denominations as are established with respect to such
Securities pursuant to Section 301.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any Coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman of the Board, one of its Vice
Chairmen; its President or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and any
Coupons appertaining thereto may be manual or facsimile.
Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any Coupons appertaining thereto, executed by the Company, to the
Trustee for authentication, and, provided that the Board Resolution or
Resolutions and Officers' Certificate or supplemental indenture or indentures
with respect to such Securities referred to in Section 301 and a Company Order
for the authentication and delivery of such Securities, has been delivered to
the Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(b) of the Trust Indenture Act) shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating, to the effect
(a) that the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the provisions of this
Indenture;
(b) that all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertion and executed and
20
29
delivered by the Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally, and
subject to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of the Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any, have been
complied with; and
(d) as to such other matters as the Trustee may reasonably
request; and
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause
an Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
or if the Trustee in good faith shall determine that such action would expose
the Trustee to personal liability to existing Holders.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in global
form shall be dated as of the date specified as contemplated by Section 301.
No Security or Coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose, unless there appears
on such Security a certificate of authentication substantially in the form
provided for in section 202 or 611 executed by or on behalf of the Trustee by
the manual signature of one of its authorized officers, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant Coupons for interest then matured
have been detached and cancelled.
21
30
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute and deliver to the Trustee and, upon Company
Order the Trustee shall authenticate and deliver, in the manner provided in
Section 303, temporary Securities of such series which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more Coupons or without Coupons and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form,
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company shall cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series, if any, shall be exchangeable upon request for definitive
Securities of such series containing identical terms and provisions upon
surrender of the temporary Securities of such series at an office or agency of
the Company maintained for such purpose pursuant to Section 1002, without charge
to any Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations of the same series containing identical terms and
provisions; provided, however, that no definitive Bearer Security, except as
provided pursuant to Section 301, shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth herein or therein. Unless otherwise
specified as contemplated by Section 301 with respect to a temporary global
Security, until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if
any, the Company shall cause to be kept, at an office or agency of the Company
maintained pursuant to Section 1002, a register (each such register being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of the Registered Securities of each series and of transfers of the
Registered Securities of such series. In the event that the Trustee shall not be
the Security Registrar, it shall have the right to examine the Security Register
at all reasonable times. National City Bank, Cleveland, Ohio, is hereby
initially appointed as Security Registrar for each series of Securities. In the
event that the Trustee shall cease to be Security Registrar with respect to a
series of Securities, it shall have the right to examine the Security Register
for such series at all reasonable times.
22
31
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company maintained for
such series pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series of any
authorized denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations, and
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If specified as contemplated by Section 301 with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms and provisions, of any authorized denominations and aggregate
principal amount, upon surrender of the Bearer Securities to be exchanged at any
such office or agency for such series, with all unmatured Coupons and all
matured Coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there is furnished to them such Security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency for such series located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of such series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
23
32
If specified as contemplated by Section 301 with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided pursuant hereto with respect to such series.
Whenever any Securities are so surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any global Security of any series shall be
exchangeable for Securities of such series only if (i) the Securities Depository
is at any time unwilling or unable or ineligible to continue as Securities
Depository and a successor depository is not appointed by the Company within 90
days of the date the Company is so notified in writing, (ii) the Company
executes and delivers to the Trustee a Company Order to the effect that such
global Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of like tenor and principal amount of any
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered from time to time by the U.S. Depository or such
other depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other depository, as the case may be (which instructions
shall be in writing but need not comply with Section 102 or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which (unless the Securities of such series are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as specified as
contemplated by Section 301) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of such series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise specified as
contemplated by Section 301) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository or the
U.S. Depository, as the case may be, or such other Depository or U.S. Depository
referred to
24
33
above in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of interest or Defaulted Interest, as the case may be,
interest will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Person to whom interest in respect of such portion of such
global Security is payable in accordance with the provisions of this Indenture.
All Securities endorsed thereon issued upon any registration
of transfer or exchange of Securities shall be the valid obligations of the
Company evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar for such series of Security presented) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and such Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
Except as otherwise specified as contemplated by Section 301,
the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of such series under Section 1103 and ending at the close of business on the day
of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Security, that such a Bearer
Security may be exchanged for a Registered Security of that series, provided
that such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture or (iv) to issue, register the transfer of or exchange any Security
which, in accordance with its terms specified as contemplated by Section 301,
has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be repaid.
25
34
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated
Coupon appertaining to it is surrendered to the Trustee, subject to the
provisions of this Section 306, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon, and (ii) such Security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306,
in case any such mutilated, destroyed, lost or stolen Security or Coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security or Coupon; provided,
however, that payment of principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its Coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security and its Coupons, if any, or the destroyed, lost or stolen Coupon shall
constitute a separate obligation of the Company, whether or not the destroyed,
lost or stolen Security and its Coupons, if any, or the destroyed, lost or
stolen Coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series and their Coupons, if any.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
Coupons.
00
00
Xxxxxxx 000. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301,
interest on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
as of the close of business on the Regular Record Date for such interest. In
case a Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency in a
Place of Payment for such series) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
of such Bearer Security, but will be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series which
shall be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names the
Registered Securities affected (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause
provided. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of such
Registered Securities at his address as it appears in the
Security Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the
27
36
following Clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a
Place of Payment for such series in exchange for a
Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before
the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon
relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder
of such Coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any Securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this Clause, such payment shall be deemed practicable by the
Trustee.
At the option of the Company, interest on Registered
Securities of any series that bear interest may be paid by mailing a check to
the address of the person entitled thereto as such address shall appear in the
Security Register.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Sections 305 and
307) interest on or any Additional Amounts with respect to, such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any Coupon
as the absolute owner of such Security or Coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not any payment with respect to such Security or Coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any
28
37
Person other than the Trustee or the Security Registrar, be delivered to the
Trustee or the Security Registrar, and any such Securities and Coupons and
Securities and Coupons surrendered directly to the Trustee or the Security
Registrar for any such purpose shall be promptly cancelled by the Trustee or the
Security Registrar, as the case may be. The Company may at any time deliver to
the Trustee or the Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee or the Security Registrar, as the case may be. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture or as
otherwise specified as contemplated by Section 301. All cancelled Securities and
Coupons held by the Trustee or the Security Registrar shall be returned to the
Company by the Trustee or the Security Registrar, as the case may be, upon a
Company Order. The Trustee shall promptly notify the Company of all cancelled
Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect with respect to any series of
Securities of such series specified in such Company Order (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and any right to receive Additional Amounts, as provided
in Section 1004), and the Trustee, on receipt of a Company Order, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
29
38
(A) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered for exchange for
Registered Securities of such series and maturing after such exchange, whose
surrender is not required or has been waived as provided in Xxxxxxx 000, (xx)
Securities and Coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Xxxxxxx 000, (xxx) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as provided
in Section 1107, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any such Coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose,
lawful money of the United States, Government Obligations which through the
payment of interest and principal or other amounts in respect thereof in
accordance with their terms will provide not later than the opening of business
on the due dates of any payment of principal (and premium, if any) and interest,
or any Additional Amounts with respect thereto, or a combination thereof, in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, or any
Additional Amounts with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
30
39
In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 or 402 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities, the Coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and any interest or any Additional Amounts for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of
Securities of Any Series.
If pursuant to Section 301 provision is made for defeasance of
Securities of any series pursuant to Section 403 the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding
Securities of such series and any Coupons appertaining
thereto,
(i) the Company has deposited or caused to
be deposited with the Trustee, as trust funds in trust for
such purpose, an amount sufficient to pay and discharge the
entire indebtedness on all Outstanding Securities of such
series for principal (and premium, if any), any Additional
Amounts, and interest to the Stated Maturity or any Redemption
Date as contemplated by the penultimate paragraph of this
Section 403, as the case may be; or
(ii) with respect to any Series of
Securities which are denominated in United States dollars, the
Company has deposited or caused to be deposited with the
Trustee, as obligations in trust for such purpose, such amount
of direct obligations of, or obligations the timely payment of
the principal of and interest on which are fully guaranteed
by,
31
40
the United States of America and which are not
callable at the option of the issuer thereof as will,
together with the income to accrue thereon without
consideration of any reinvestment thereof, be sufficient to
pay and discharge the entire indebtedness on all Outstanding
Securities of such series for principal (and premium, if any),
any Additional Amounts, and interest to the stated Maturity or
any Redemption Date as contemplated by the penultimate
paragraph of this Section 403; or
(B) the Company has properly fulfilled such
other means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series; and
(2) the Company has paid or caused to be
paid all other sums payable hereunder with respect to the
Outstanding Securities of such series; and
(3) the Company has delivered to the Trustee
a certificate signed by a nationally recognized firm of
Independent Public Accountants certifying as to the
sufficiency of the amounts deposited pursuant to subsections
(A)(i) or (ii) of this Section for payment of the principal
(and premium, if any) and interest on the dates such payments
are due, an Officers' Certificate and an Opinion of Counsel,
each such Certificate and opinion stating that no Event of
Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such
Securities shall have occurred and all conditions precedent
herein provided for relating to the satisfaction and discharge
of the entire indebtedness on all Outstanding Securities of
any such series have been complied with; and
(4) the Company has delivered to the Trustee
(A) a ruling from the Internal Revenue
Service or an opinion of independent counsel that the holders
of the Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(B) if the Securities of such series are
then listed on the New York Stock Exchange, an Opinion of
Counsel that the Securities of such series will not be
delisted as a result of the exercise of this option.
Any deposits with the Trustee referred to in subsection (1)(A)
of this Section shall be irrevocable and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the Trustee. If any
Outstanding Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption or repayment provisions or
in accordance with any mandatory sinking fund requirement, the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
32
41
Upon the satisfaction of the conditions set forth in this
Section 403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, other than the provisions of
Sections 305, 306, and 1002 and other than the right of Holders of Securities
and any Coupons of such series to receive, from the trust fund described in this
Section, payment of the principal (and premium, if any) of, the interest on or
any Additional Amounts with respect to such Securities and Coupons (if any)
appertaining thereto when such payments are due, and the rights, powers, duties
and immunities of the Trustee hereunder, shall no longer be binding upon, or
applicable to, the Company except those responsibilities and obligations which
by the terms of the Indenture survive the termination of the Indenture; provided
that the Company shall not be discharged from any payment obligations in respect
of Securities of such series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Company under applicable law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or be
effected by operation of law pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest
upon or any Additional Amounts payable in respect of any
Security of such series when such interest becomes or
Additional Amounts become due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal
of (and premium, if any, on) any Security of that series when
it becomes due and payable at Maturity; or
(3) default in the deposit of any sinking
fund payment, when and as due by the terms of a Security of
that series; or
(4) default in the performance, or breach,
of any covenant or warranty of the Company in this Indenture
or the Securities (other than a covenant or warranty a default
in the performance or the breach of which is elsewhere in this
Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of a series
of Securities other than such series), and continuance of such
default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
33
42
(5) if any event of default as defined in
any mortgage, indenture or instrument under which there may be
issued, or by which there may be secured or evidenced, any
indebtedness of the Company or any Principal Constituent Bank
for money borrowed, whether such indebtedness now exists or
shall hereafter be created, shall happen and shall result in
such indebtedness in principal amount in excess of $25,000,000
becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such
indebtedness shall not have been discharged, within a period
of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Securities of such series,
a written notice specifying such event of default and
requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be
discharged and stating that such notice is a "Notice of
Default" hereunder; or
(6) a court having jurisdiction in the
premises shall enter a decree or order for relief in respect
of the Company or a Principal Constituent Bank in an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, and adjudging
it a bankrupt or insolvent or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or a Principal Constituent
Bank or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree
or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(7) the Company or a Principal Constituent
Bank shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or shall consent to the entry of an order for
relief in any involuntary case under any such law, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or a
Principal Constituent Bank or for any substantial part of its
property, or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance
of any of the foregoing; or
(8) any other Event of Default provided with
respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time outstanding occurs and is continuing, then the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal of all the Securities of that series,
or such lesser amount as may be provided for in the Securities of that series,
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable.
34
43
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue installments of interest on
and any Additional Amounts payable in respect of all
Securities of such series,
(B) the principal of (and premium, if any,
on) any Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for
in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue installments of
interest or any Additional Amounts at the rate or rates borne
by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel as provided in Section 606 hereof; and
(2) all Events of Default with respect to
Securities of such series, other than the non-payment of the
principal of Securities of that series which has become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts payable in respect of any Security when
such interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and any Coupons appertaining thereto, the whole
amount then due and payable on such Securities and Coupons for principal (and
premium, if any) and interest or Additional Amounts, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
35
44
interest or any Additional Amounts, at the rate or rates borne by or provided
for in such Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any Coupons appertaining thereto by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or such Securities or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole
amount or such lesser amount as may be provided for in the
Securities of such series, of principal (and premium, if any)
and interest and any Additional Amounts owing and unpaid in
respect of the Securities and any Coupons appertaining thereto
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents or counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or Coupons to
36
45
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders of Securities or
Coupons, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession
of Securities or Coupons.
All rights of action and claims under this Indenture or any of
the Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or Coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of the Holders of the Security and
Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(and premium, if any), interest or any Additional Amounts, upon presentation of
the Securities or Coupons, or both, as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then
due and unpaid upon the Securities and Coupons for principal
(and premium, if any) and interest or any Additional Amounts
payable in respect of which or for the benefit of which such
money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due
and payable on such Securities and Coupons for principal (and
premium, if any), interest or any Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or
Persons entitled thereto.
37
46
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related Coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to
the Trustee indemnity satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee during such
60-day period by the Holders of a majority in principal amount
of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium, Interest and Additional
Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on or any Additional Amounts in
respect of such Security or payment of such Coupon on the respective Stated
Maturity or Maturities specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or Coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and each such Holder shall, subject to any
38
47
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of a Security or Coupon is intended to
be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of Securities or Coupons
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or Coupons, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series and any Coupons appertaining thereto, provided
that
(1) such direction shall not be in conflict
with any rule of law or with this Indenture,
(2) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with
such direction, and
(3) such direction is not unduly prejudicial
to the rights of other Holders of Securities of such series.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto waive any past
default hereunder with respect to such series and its consequences, except a
default
39
48
(1) in the payment of the principal of (and
premium, if any) or interest on or Additional Amounts payable
in respect of any Security of such series or any Coupons
appertaining thereto, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding Security
of such series affected.
Upon any such waiver, such default shall
cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to a Responsible Officer of the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Holders of Securities and Coupons of such series; and provided further, that in
the case of default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default, with respect to Securities of such
series.
40
49
Section 602. Certain Rights of Trustee.
Subject to the provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act:
(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, or other paper or document reasonably
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company
Request or a Company Order (other than delivery of any
Security, together with any Coupons appertaining thereto to
the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution or Board
Resolutions;
(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 of
its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(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
Securities of any series or any Coupons appertaining thereto
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable Security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(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 or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney at the sole cost to the Company and shall incur no
liability or additional liability of any kind by reason of
such inquiry or investigation;
(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
41
50
not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any
action taken, suffered, omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Indenture;
(i) the Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this
Indenture; and
(j) the rights, privileges, protections,
immunities and benefits given to the Trustee, including,
without limitation, its right to be indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
Section 603. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any coupons shall be taken
as the statements of the Company and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Trustee or
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law and shall be
held uninvested. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
42
51
Section 606. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
such compensation for all services rendered by it hereunder as
shall be mutually agreed upon by the Company and the Trustee
in writing (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense including
taxes (other than taxes based upon, measured by or determined
by the income of the Trustee) incurred without negligence or
bad faith on their part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties
hereunder.
As Security for the performance of the
obligations of the Company under this Section, the Trustee
shall have a lien prior to the Securities of any series upon
all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal
of (or premium, if any) or interest on Securities. When the
Trustee incurs expenses or renders services after an Event of
Default occurs, the expenses and compensation for the services
of the Trustee are intended to constitute expenses of
administration under any bankruptcy law or any similar federal
or state law for the relief of debtors.
The provisions of this Section 606 shall survive the
termination of this Indenture.
Section 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.
There shall at all times be a Trustee hereunder that is a
corporation permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to
act as trustee under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, the Trustee shall take such action as is required
pursuant to said Section 310(b).
43
52
Section 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant
to Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act after written
request therefor by the Company or by any Holder of a Security who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company or by any
such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to Board Resolution, may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(c) of the Trust Indenture Act any Holder of a Security who has been a bona
fide Holder of a Security of any series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
or pursuant to Board Resolutions, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
44
53
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 609. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall became vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company and/or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring
45
54
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture other than as hereinafter expressly set forth, and each such successor
Trustee without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
46
55
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Authenticating Agents with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of that or those series issued upon original issue or exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and, except as specified as contemplated by Section 301, shall at all times be a
corporation that would be permitted by Section 310(a)(1) and (5) of the Trust
Indenture Act to be able to act as a trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and by its charter
to act as such and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of not less that
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section. If the Authenticating Agent has or shall acquire any conflicting
interest, as defined in Section 310(b) of the Trust Indenture Act, with respect
to the Securities of any series, the Authenticating Agent shall take action as
is required pursuant to said Section 310(b).
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become
47
56
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay each Authenticating Agent from time
to time reasonable compensation for its services under this Section. If the
Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
As Trustee
By______________________________________
As Authenticating Agent
By______________________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not comply with Section 102) by the Company, shall appoint in accordance with
this Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act,
the Company will furnish or cause to be furnished to the Trustee
48
57
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
provided, however, that so long as the Trustee is the
Security Registrar no such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after September 15 of each year commencing
with the year following the first issuance of Securities pursuant to Section
301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit pursuant to Section 313(c) of the Trust Indenture Act a brief report
dated as of such September 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding September 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information,
49
58
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a Security listed and registered on a national
Securities exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with respect to compliance by such obligor with the conditions and
covenants of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission; and
(4) transmit within 30 days of September 15 of each year to
the Trustee, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company as to his or
her knowledge of such obligor's compliance with all conditions and covenants
under the Indenture as determined without regard to any period of grace or
requirement of notice provided under the Indenture.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate Etc., Only on Certain
Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or into
any other Person or Persons (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or
50
59
lease of the property of the Company as an entirety or substantially as an
entirety, to any other Person (whether or not affiliated with the Company);
provided, however, that:
(1) in case the Company shall consolidate
with or merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to any
Person, the entity formed by such consolidation or into which
the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee)
supplemental hereto, executed and delivered by the successor
Person to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium,
if any) and interest on or any Additional Amounts in respect
of all the Securities and the performance of every other
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of
Default, and no event (including, without limitation, default
under Section 1006) which, after notice or lapse of time or
both, would become an Event of Default, shall have happened
and be continuing; and
(3) each of the Company and the successor
Person has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Corporation Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer
or lease of the properties and assets of the Company substantially as an
entirety to any Person in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities and the Coupons.
51
60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent
of Holders.
Without the consent of any Holders of Securities or Coupons,
the Company, when authorized by Board Resolutions, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another
Person to the Company, and the assumption by any such
successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company
for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add to or change any of the
provisions of this Indenture to provide that Bearer Securities
may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal (or premium, if any)
on Registered Securities or of principal (or premium, if any)
or any interest on Bearer Securities, to permit Registered
Securities to be exchanged for Bearer Securities or to permit
or facilitate the issuance of Securities in uncertified form,
provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
Coupons appertaining hereto in any material respect; or
(4) to establish the form or terms of
Securities of any series and any Coupons appertaining thereto
as permitted by Sections 201 and 301; or
(5) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 609(b); or
(6) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the
provisions of this Indenture and which shall not adversely
affect the interest of the Holders of Securities of any series
or any related coupons in any material respect; or
52
61
(7) to add to, delete from or revise the
conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default;
or
(9) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be
necessary to conform the obligations of the Company and the
Trustee under this Indenture to the obligations imposed on
such Persons hereunder pursuant to the Trust Indenture Act or
under any similar federal statute hereafter enacted and rules
or regulations of the Commission thereunder.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental Indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the
principal of, or any installment of interest on, any Security,
or reduce the principal amount thereof or the rate of interest
thereon or any Additional Amounts payable in respect thereof,
or any premium payable upon the redemption thereof, or change
the obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section
801(l) and permitted by Section 901(l)), or reduce the amount
of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or change the
Place of Payment, coin or currency in which any Security or
any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this
section, or Sections 512, 513 or Section 1011, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security
affected thereby.
53
62
The Company may, but shall not be obligated to, fix a record
date for the purposes of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and that it complies with the terms of this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a
54
63
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any), interest on or any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any Coupons appertaining thereto and this
Indenture. Any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1004 in respect of principal of (or premium, if
any, on) such a Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of such series (but
not Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company shall
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related Coupons may be presented
and surrendered for payment (including payment of any Additional Amounts payable
on Securities of such series pursuant to Section 1004); provided, however, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London, Luxembourg
or any other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related Coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1004) at the place specified for the purpose
55
64
pursuant to Section 301, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise specified as contemplated by Section 301,
no payment of principal, premium or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; provided, however, payment of principal of
and any premium and interest in U.S. dollars (including Additional Amounts
payable in respect thereof) on any Bearer Security may be made at the Corporate
Trust Office or any office or agency designated by the Company in the Borough of
Manhattan, The City of New York if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of their obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified as contemplated
by Section 301, the Company hereby designates as the Place of Payment for each
series the City of Cleveland, Ohio, and initially appoints the office or agency
of the Company for such purpose. Pursuant to Section 301(9) of this Indenture,
the Company may subsequently appoint a place or places in the Borough of
Manhattan, The City of New York where such Securities may be payable.
Section 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any), or interest on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or prior to each due date of the principal
of (and premium, if any), or interest on, any Securities of that series, deposit
with any Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
56
65
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment
of the principal of (and premium, if any) or interest on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default
by the Company (or any other obligor upon the Securities of
that series) in the making of any payment of principal (and
premium, if any) or interest on the Securities of that series;
and
(3) at any time during the continuance of
any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided hereby or pursuant hereto, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest and Additional Amounts on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any Coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities for such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal (and
premium, if any) or interest has become due and payable, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any such Security
of any such series or any Coupon
57
66
appertaining thereto Additional Amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
(or premium, if any) or interest on, or in respect of, any Security of any
series or any related Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of such
series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise provided herein or pursuant hereto, if the
Securities of a series provide for the Payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of that series shall not bear interest prior to
Maturity, the first day on which a payment of principal (and premium, if any) is
made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal (and premium, if
any) of or interest on the Securities of that series shall be made to Holders of
Securities of that series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or Coupons and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
Section 1005. Statement as to Compliance; Notice of Certain
Defaults.
(a) The Company will, in addition to the reports required by
Section 704(4), deliver to the Trustee, within 120 days after the end of each
fiscal year (which on the date hereof ends on December 31), commencing December
31, 1999, a written statement, which need not comply with Section 102, signed by
the Chairman of the Board, a Vice Chairman, the President or a Vice President
and by the Treasurer or an Assistant Treasurer of the Company, stating, as to
each signer thereof, that
(1) a review of the activities of the
Company during such year and of performance under this
Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on
such review, (a) the Company has fulfilled all of its
obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such
obligation, specifying each such default
58
67
known to him and the nature and status thereof, and
(b) no event has occurred and is continuing which
is, or after notice or lapse of time or both would became, an
Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the
nature and status thereof.
(b) The Company will deliver to the Trustee
as soon as possible, and in any event, within five days after
the occurrence thereof, written notice of any event which
after notice or lapse of time or both would become an Event of
Default.
Section 1006. Limitation Upon Sale or Issuance of Capital
Stock of Certain Subsidiaries.
Except as set forth below, the Company will not sell, assign,
pledge, transfer or otherwise dispose of, or permit the issuance of, or permit a
Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of
Capital Stock of any Subsidiary or any Securities convertible into Capital Stock
of any Subsidiary which is:
(a) a Principal Constituent Bank; or
(b) a Subsidiary which owns shares of Capital Stock or any
Securities convertible into Capital Stock of a Principal Constituent Bank;
provided, however, nothing in this Section shall prohibit (i) any dispositions
made by the Company or any Subsidiary (A) acting in a fiduciary capacity for any
person other than the Company or any Subsidiary or (B) to the Company or any of
its wholly-owned Subsidiaries or (ii) the merger or consolidation of a Principal
Constituent Bank with and into a Constituent Bank or the merger or consolidation
of any Principal Constituent Bank with and into any other Principal Constituent
Bank.
Notwithstanding the foregoing, sales, assignments, pledges,
transfers, issuances or other dispositions of shares of Capital Stock of a
corporation referred to in Clause (a) or (b) above may be made where:
(i) the sales, assignments, pledges,
transfers, issuances or other dispositions are made, in the
minimum amount required by law, to any Person for the purpose
of the qualification of such Person to serve as a director; or
(ii) the sales, assignments, pledges,
transfers, issuances or other dispositions are made in
compliance with an order of a court or regulatory authority of
competent jurisdiction or as a condition imposed by any such
court or authority to the acquisition by the Company, directly
or indirectly, of any other corporation or entity; or
(iii) in the case of a disposition or
issuance of shares of Capital Stock or any Securities
convertible into Capital Stock of a Principal Constituent
Bank, or sales of Capital Stock or any Securities convertible
59
68
into Capital Stock of any Subsidiary included in Clause
(b) above, the sales, assignments, pledges, transfers,
issuances or other dispositions are for fair market
value (as determined by the Board of Directors of the Company
and the Subsidiary disposing of such shares or Securities,
such determination being evidenced by a Board Resolution) and,
after giving effect to such disposition and to any potential
dilution (if the shares or Securities are convertible into
Capital Stock), the Company and its wholly-owned (except for
directors' qualifying shares) Subsidiaries, will own directly
not less than 80% of the Voting Stock of such Principal
Constituent Bank or Subsidiary; or
(iv) a Principal Constituent Bank sells
additional shares of Capital Stock to its stockholders at any
price, so long as immediately after such sale the Company
owns, directly or indirectly, at least as great a percentage
of the Voting Stock of such Principal Constituent Bank as it
owned prior to such sale of additional shares.
Section 1007. Limitation on Liens.
The Company will not pledge, mortgage or hypothecate, or
permit to exist any pledge, mortgage or hypothecation or other lien upon, any
shares of Capital Stock of a Constituent Bank to secure any indebtedness for
borrowed money without making effective provisions whereby the Securities shall
be equally and ratably secured with any and all such indebtedness.
In case the Company shall propose to pledge, mortgage, or
hypothecate any such shares of Capital Stock at any time owned by it to secure
any indebtedness, the Company will prior thereto give written notice thereof to
the Trustee and will prior to or simultaneously with such pledge, mortgage or
hypothecation, by supplemental indenture delivered to the Trustee, in form
satisfactory to it, effectively secure all the Securities equally and ratably
with such indebtedness, by pledge, mortgage or hypothecation of such shares of
Capital Stock. Such supplemental indenture shall contain the provisions
concerning the possession, control, release and substitution of mortgaged and
pledged property and Securities and other appropriate matters which are required
or are permitted by the Trust Indenture Act (as in effect at the date of
execution of such supplemental indenture) to be included in a secured indenture
qualified under said Trust Indenture Act, and may also contain such additional
and amendatory provisions permitted by said Trust Indenture Act as the Company
and the Trustee shall deem advisable or appropriate or as the Trustee shall deem
necessary in connection with such pledge, mortgage or hypothecation.
Section 1008. Limitation on Certain Acquisitions.
The Company will not (a) acquire Capital Stock of any
corporation or (b) acquire substantially all the assets and liabilities of any
corporation, if, immediately upon giving effect to such acquisition, the Company
would not then be in full compliance with all the terms, conditions and
covenants contained in this Indenture.
60
69
Section 1009. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1010. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises and the
corporate existence, rights (charter and statutory) and franchises of each
Principal Constituent Bank; provided, however, that the Company shall not be
required to preserve any such corporate existence, right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
Section 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 1006, 1007, 1008 and 1009
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 1012. Calculation of Original Issue Discount
The Company shall file with the Trustee promptly at the end
each calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
61
70
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall be made
in accordance with the terms of such Securities and (except as otherwise
provided herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by Board Resolution. In case of any redemption at the election of the
Company of the Securities of any series, with the same issue date, interest rate
and Stated Maturity, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed.
Section 1103. Selection by Trustee of Securities to be
Redeemed.
If less than all the Securities of any series with the same
issue date, interest rate, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Registered Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Registered Security of such series not
redeemed to less than the minimum denomination for a Security of such series
established herein pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been or is to
be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by mailing in
the manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder,
62
71
shall not affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed,
(4) in case any Registered Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Registered Security or Registered
Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed only, as to Bearer
Securities, against tender of such Security and any Coupons appertaining
thereto, and, if applicable, that interest thereon and Additional Amounts, if
any, shall cease to accrue on and after said date,
(6) the place or places where such Securities, together, in
the case of Bearer Securities with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price,
(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 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
63
72
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on and any Additional Amounts with respect
thereto, all the Securities or portions thereof which are to be redeemed on that
date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest (or any Additional Amounts) to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of coupons for such interest (at an office or agency
located outside the United States except as otherwise provided in Section 1002),
and provided, further, that installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such Security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest (or any Additional Amounts) represented by Coupons shall
be payable only upon presentation and surrender of those Coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any office or agency of the Company maintained for that
purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
64
73
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of such series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series to be made
pursuant to the terms of such Securities as provided for by the terms of such
series (1) deliver Outstanding Securities of such series (other than any of such
Securities previously called for redemption or any of such Securities in respect
of which cash shall have been released to the Company), together in the case of
any Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities of any series in lieu of
cash payments pursuant to this Section 1202, the principal amount of Securities
of such series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000,
65
74
the Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of
the Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
66
75
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
Section 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of such series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
Section 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series are to be issued as Bearer Securities, in
London, as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
Section 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such
67
76
series. In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not present or represented at the meeting.
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
68
77
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
69
78
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 1501. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
* * * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
70
79
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed , and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
[SEAL] NATIONAL CITY CORPORATION
Attest: By__________________________________
Name:
Title:
[SEAL] THE BANK OF NEW YORK, TRUSTEE
Attest: By___________________________________
Name:
Title:
71
80
STATE OF OHIO )
: ss.:
COUNTY OF CUYOHOGA )
On the __th day of ______________, 1999, before me personally
came ______________, to me known, who, being by me duly sworn, did depose and
say that he is a [title] of NATIONAL CITY CORPORATION, a Delaware corporation,
one of the persons described in and who executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
____________________________________
Notary Public
[NOTARIAL SEAL]
72
81
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the __th day of ______________, 1999, before me personally
came ______________, to me known, who, being by me duly sworn, did depose and
say that he is a [title] of THE BANK OF NEW YORK, a New York banking
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporation's seal; that it was so affixed by authority
of the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
_______________________________________
Notary Public
[NOTARIAL SEAL]
