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Exhibit 4.7
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PNC FUNDING CORP,
Issuer,
PNC FINANCIAL CORP,
Guarantor,
AND
Manufacturers Hanover Trust Company,
Trustee
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INDENTURE
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Dated as of December 1, 1991
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Guaranteed Debt Securities
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TABLE OF CONTENTS*
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 1.01. Definitions ............................................. 2
"this Indenture" and certain other terms ................ 2
"Act" ................................................... 2
"Affiliate" ............................................. 2
"Authorized Newspaper" .................................. 3
"Board of Directors" .................................... 3
"Board Resolution" ...................................... 3
"Business Day" .......................................... 3
"Capital Stock" ......................................... 3
"Commission" ............................................ 3
"Company" ............................................... 3
"Company Request," "Company Order,"
"Guarantor Request" and "Guarantor
Order" ............................................... 4
"Component Currency" .................................... 4
"Consolidated Banking Assets" ........................... 4
"Conversion Date" ....................................... 4
"Conversion Rate" ....................................... 4
"Corporate Trust Office" ................................ 4
"Coupon" ................................................ 4
"Coupon Security" ....................................... 4
"Default" ............................................... 4
"Defaulted Interest" .................................... 4
"Depositary" ............................................ 4
"Dollar" ................................................ 5
"Dollar Determination Agent" ............................ 5
"Dollar Equivalent of the Currency Unit" ................ 5
"Dollar Equivalent of the Foreign Currency" ............. 5
"ECU" ................................................... 5
"European Communities" .................................. 5
"Event of Default" ...................................... 5
"Exchange Rate Officer's Certificate" ................... 5
"Foreign Currency" ...................................... 5
"Fully Registered Security" ............................. 5
"Global Security" ....................................... 5
"Government Obligations" ................................ 6
"Guarantees" ............................................ 6
"Guarantor" ............................................. 6
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* The Table of Contents is not part of the Indenture.
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"Holder" ................................................ 6
"Indenture" ............................................. 7
"Interest Payment Date" ................................. 7
"Market Exchange Rate" .................................. 7
"Maturity" .............................................. 7
"Officers' Certificate" ................................. 7
"Official Currency Unit Exchange Rate" .................. 7
"Opinion of Counsel" .................................... 7
"Original Issue Discount Security" ...................... 7
"Outstanding" ........................................... 7
"Paying Agent" .......................................... 8
"Person" ................................................ 8
"Place of Payment" ...................................... 9
"Predecessor Securities" ................................ 9
"Principal Corporate Trust Office" ...................... 9
"Principal Subsidiary Bank" ............................. 9
"Redemption Date" ....................................... 9
"Redemption Price" ...................................... 9
"Registered Holder" ..................................... 9
"Registered Security" ................................... 10
"Regular Record Date" ................................... 10
"Repayment Date" ........................................ 10
"Repayment Price" ....................................... 10
"Required Currency" ..................................... 10
"Responsible Officer" ................................... 10
"Security" or "Securities" .............................. 10
"Security Register" or Security Registrar" .............. 10
"Senior Debt Securities" ................................ 10
"Senior Company Indebtedness" ........................... 10
"Senior Guarantor Indebtedness" ......................... 11
"Special Record Date" ................................... 11
"Specified Amount" ...................................... 12
"Stated Maturity" ....................................... 12
"Subordinated Debt Securities" .......................... 12
"Subsidiary" ............................................ 12
"Subsidiary Bank" ....................................... 12
"Trust Indenture Act" or "TIA" .......................... 12
"Trustee" ............................................... 12
"Unregistered Security" ................................. 12
"Valuation Date" ........................................ 12
"Vice President" ........................................ 12
"Voting Shares" ......................................... 13
SECTION 1.02. Compliance Certificates and Opinions .................... 13
SECTION 1.03. Form of Documents Delivered to Trustee .................. 14
SECTION 1.04. Acts of Security Holders ................................ 15
SECTION 1.05. Notices, etc., to Trustee, Company
and Guarantor ......................................... 16
SECTION 1.06. Notices to Holders; Waiver .............................. 16
SECTION 1.07. Conflict with Trust Indenture Act ....................... 17
SECTION 1.08. Effect of Headings and Table of Contents ................ 18
SECTION 1.09. Successors and Assigns .................................. 18
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SECTION 1.10. Separability Clause ..................................... 18
SECTION 1.11. Benefits of Indenture ................................... 18
SECTION 1.12. Legal Holidays .......................................... 18
SECTION 1.13. Governing Law ........................................... 19
SECTION 1.14. Moneys of Different Currencies To Be
Segregated ............................................ 19
SECTION 1.15. Payment To Be in Proper Currency ........................ 19
ARTICLE TWO
FORMS
SECTION 2.01. Forms Generally ......................................... 20
SECTION 2.02. Form of Trustee's Certificate of
Authentication ......................................... 20
SECTION 2.03. Forms of Security ....................................... 21
SECTION 2.04. Form of Guarantee ....................................... 21
SECTION 2.05. Securities Issuable in the Form
of a Global Security ................................... 22
ARTICLE THREE
THE SECURITIES AND THE GUARANTEES
SECTION 3.01. Title and Terms ......................................... 24
SECTION 3.02. Denominations ........................................... 29
SECTION 3.03. Execution, Authentication and Delivery .................. 29
SECTION 3.04. Temporary Securities .................................... 31
SECTION 3.05. Registration, Registration of Transfer
and Exchange .......................................... 32
SECTION 3.06. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities or Coupons .......................... 34
SECTION 3.07. Payment of Interest; Interest
Rights Preserved ....................................... 35
SECTION 3.08. Persons Deemed Owners ................................... 37
SECTION 3.09. Cancellation of Securities; Destruction
Thereof ............................................... 38
SECTION 3.10. Computation of Interest ................................. 38
SECTION 3.11. Currency and Manner of Payments in Respect
of Securities ......................................... 38
SECTION 3.12. Unconditional Guarantee ................................. 43
SECTION 3.13. Execution of Guarantees ................................. 45
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article ................................ 45
SECTION 4.02. Notice of Redemption; Selection of
Securities ............................................ 45
SECTION 4.03. Payment of Securities Called for
Redemption ............................................. 47
SECTION 4.04. Sinking Funds ........................................... 48
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and
Interest; Compliance with Terms ....................... 50
SECTION 5.02. Maintenance of Agency ................................... 51
SECTION 5.03. Money for Security Payments To Be
Held in Trust .......................................... 52
SECTION 5.04. Certification of Compliance of the
Company and the Guarantor ............................. 53
SECTION 5.05. Corporate Existence ..................................... 54
SECTION 5.06. Limitation on Sale or Issuance
of Voting Stock of Principal
Subsidiary Banks ...................................... 54
SECTION 5.07. Ownership of the Company ................................ 56
SECTION 5.08. Liens ................................................... 56
SECTION 5.09. Waiver of Covenants ..................................... 58
ARTICLE SIX
SECURITY HOLDERS' LISTS AND REPORTS
BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 6.01. Company and Guarantor To Furnish
Trustee Names and Addresses
of Security Holders ................................... 58
SECTION 6.02. Preservation of Information;
Communications to Security Holders .................... 59
SECTION 6.03. Reports by Trustee ...................................... 59
SECTION 6.04. Reports by Company and Guarantor ........................ 59
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ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default and Defaults .......................... 59
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment ......................................... 62
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee ............................ 64
SECTION 7.04. Trustee May File Proofs of Claim ........................ 65
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities .............................. 66
SECTION 7.06. Application of Money Collected .......................... 67
SECTION 7.07. Limitation on Suits ..................................... 67
SECTION 7.08. Unconditional Right of Security
Holders To Receive Principal,
Premium and Interest .................................. 68
SECTION 7.09. Restoration of Rights and Remedies ...................... 69
SECTION 7.10. Rights and Remedies Cumulative .......................... 69
SECTION 7.11. Delay or Omission Not Waiver ............................ 69
SECTION 7.12. Control by Security Holders ............................. 69
SECTION 7.13. Waiver of Past Defaults ................................. 70
SECTION 7.14. Undertaking for Costs ................................... 70
SECTION 7.15. Waiver of Stay or Extension Laws ........................ 71
SECTION 7.16. Judgment Currency ....................................... 71
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities ..................... 72
SECTION 8.02. Notice of Defaults ...................................... 73
SECTION 8.03. Certain Rights of Trustee ............................... 73
SECTION 8.04. Not Responsible for Recitals or Issuance
of Securities and Guarantees .......................... 74
SECTION 8.05. May Hold Securities ..................................... 75
SECTION 8.06. Money Held in Trust ..................................... 75
SECTION 8.07. Compensation and Reimbursement .......................... 75
SECTION 8.08. Qualification of Trustee; Conflicting
Interests ............................................. 76
SECTION 8.09. Persons Eligible for Appointment
as Trustee ............................................ 76
SECTION 8.10. Resignation and Removal; Appointment
of Successor .......................................... 77
SECTION 8.11. Acceptance of Appointment by Successor .................. 79
SECTION 8.12. Merger, Conversion, Consolidation
or Succession to Business of Trustee .................. 80
SECTION 8.13. Preferential Collection of Claims
Against Company and Guarantor ......................... 80
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent
of Security Holders ................................... 80
SECTION 9.02. Supplemental Indentures with Consent
of Security Holders ................................... 82
SECTION 9.03. Execution of Supplemental Indentures .................... 83
SECTION 9.04. Effect of Supplemental Indentures ....................... 83
SECTION 9.05. Conformity with Trust Indenture Act ..................... 84
SECTION 9.06. Reference in Securities to Supplemental
Indentures ............................................ 84
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on
Certain Terms ......................................... 84
SECTION 10.02. Successor Corporation Substituted for
Company ............................................... 85
SECTION 10.03. Guarantor May Consolidate, etc., Only on
Certain Terms ......................................... 85
SECTION 10.04. Successor Corporation Substituted for
Guarantor ............................................. 86
SECTION 10.05. Company May Consolidate, etc.
with Guarantor, Only on
Certain Terms ......................................... 86
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Satisfaction and Discharge of Securities
of Any Series ......................................... 87
SECTION 11.02. Satisfaction and Discharge of Indenture ................. 90
SECTION 11.03. Application of Trust Money .............................. 90
SECTION 11.04. Repayment of Moneys Held by Paying Agent ................ 91
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Subordinated Debt Securities Subordinated
to Senior Company Indebtedness ......................... 91
SECTION 12.02. Payments upon Dissolution of the Company ................ 91
SECTION 12.03. No Payment When Senior Company
Indebtedness in Default ............................... 95
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SECTION 12.04. Guarantees of Subordinated Debt Securities
Subordinated to Senior Guarantor
Indebtedness ........................................... 96
SECTION 12.05. Payments Upon Dissolution of the
Guarantor .............................................. 96
SECTION 12.06. No Payment When Senior Guarantor
Indebtedness in Default; ............................... 100
SECTION 12.07. No Impairment of Holders' Rights ......................... 101
SECTION 12.08. Effectuation of Subordination by
Trustee ................................................ 102
SECTION 12.09. Knowledge of Trustee ..................................... 102
SECTION 12.10. Trustee's Relation to Senior Company
Indebtedness or Senior Guarantor
Indebtedness ........................................... 102
SECTION 12.11. No Waiver of Default or Event of
Default ................................................. 103
SECTION 12.12. Claims of the Trustee .................................... 103
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability ...................... 104
ARTICLE FOURTEEN
HOLDERS' MEETINGS
SECTION 14.01. Purposes of Meetings ..................................... 104
SECTION 14.02. Call of Meetings by Trustee .............................. 104
SECTION 14.03. Call of Meetings by Company, Guarantor
or Holders ............................................. 105
SECTION 14.04. Qualifications for Voting ................................ 105
SECTION 14.05. Regulations .............................................. 105
SECTION 14.06. Voting ................................................... 106
SECTION 14.07. No Delay of Rights by Meeting ............................ 107
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Cross Reference Table
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Showing Reflection of Certain Provisions
Required Pursuant to Section 310 through 318(a)
of Trust Indenture Act of 1939, as Amended, (Including
Cross-References to Provisions of Sections 310 through 318(a)
which, Pursuant to
Section 318(c) of the Trust Indenture Act of 1939,
as Amended, are Part of and Govern Such Provisions
of the Indenture Whether or not Physically Contained Therein*
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TIA Section
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SECTION 310 (a)(1) ....................................... 8.09
(a)(2) ....................................... 8.09
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(a)(5) ....................................... 8.09
(b) .......................................... 8.08, 8.10(a),
(b) and (d)
(c) .......................................... Not Applicable
SECTION 311 (a) .......................................... 8.13(a) and
(c) (1) and (2)
(b) .......................................... 8.13(b)
(c) .......................................... Not Applicable
SECTION 312 (a) .......................................... 6.01
6.02(a)
6.02(b)
(b) .......................................... 6.02(a) and (b)
SECTION 313 (a) .......................................... 6.03(a)
6.03 (b)
(c) .......................................... 1.06
6.03(a)
6.03(c)
6.04(3)
8.02
(d) .......................................... 6.03(c)
SECTION 314(a) (1), (2) and (3) ............................. 6.04
(a) (4) ...................................... 5.04
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* This Table is not part of the Indenture.
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(b) .......................................... Not Applicable
(c)(1) ....................................... 1.02
(c)(2) ....................................... 1.02
(c)(3) ....................................... Not Applicable
(d) .......................................... Not Applicable
(e) .......................................... 1.02
(f) .......................................... Not Applicable
SECTION 315 (a) .......................................... 8.01(a)
8.01(c)
(b) .......................................... 8.02
(c) .......................................... 8.01(b)
(d) .......................................... 8.01
(d)(1) ....................................... 8.01(a)
(d)(2) ....................................... 8.01(c)(2)
(d)(3) ....................................... 8.01(c)(3)
(e) .......................................... 7.14
SECTION 316 (a)(1)(A) .................................... 7.02
7.12
(a)(1)(B) .................................... 7.13
(a)(2) ....................................... Not Applicable
(a) last sentence ............................ 3.08
(b) .......................................... 7.08
SECTION 317 (a)(1) ....................................... 7.03
(a)(2) ....................................... 7.04
(b) .......................................... 5.03
SECTION 318 (a) .......................................... 1.07
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INDENTURE, dated as of December 1, 1991, among PNC Funding Corp, a
Pennsylvania Corporation (hereinafter called the "Company," which term shall
include any successors and assigns pursuant to the terms of this Indenture),
having its principal executive office at the Marine Bank Building, Ninth and
Xxxxx Xxxxxxx, Xxxx, Xxxxxxxxxxxx 00000, PNC Financial Corp, a Pennsylvania
corporation (hereinafter called the "Guarantor," which term shall include any
successors and assigns pursuant to the terms of this Indenture), having its
principal executive office at Xxxxx Xxxxxx xxx Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, and Manufacturers Hanover Trust Company, a New York
corporation (hereinafter called the "Trustee"), having its Principal Corporate
Trust Office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Company deems it appropriate from time to time to issue
its unsecured debentures, notes, bonds or other evidences of indebtedness, to
be issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture;
WHEREAS, the Guarantor deems it appropriate to guarantee (hereinafter
called the "Guarantees") the Securities on the terms hereinafter provided, and
to provide therefor, the Guarantor has duly authorized the execution and
delivery of this Indenture;
WHEREAS, the Trustee deems it appropriate to serve as trustee on the
terms hereinafter provided, and to provide therefor, the Trustee has duly
authorized the execution and delivery of this Indenture;
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Guarantor, in accordance with its terms, have been done.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Trustee, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders and the Securities, as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the term "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated
hereunder;
(2) all references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument; the words "herein,"
"hereof" and "thereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(3) the terms defined in this Indenture have the meanings
assigned to them in this Indenture and include the plural as well as
the singular;
(4) all other terms used herein which are defined in the Trust
Indenture Act, or in Commission rules thereunder, either directly or by
reference therein, have the meanings assigned to them therein; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles.
Certain terms, used principally in Article Eight, are defined in that
Article.
"Act," when used with respect to any Security Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
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otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities as may be provided elsewhere in this
Indenture or specified as contemplated by Section 3.01 with respect to the
Securities of any series the terms of which permit Unregistered Securities or
Coupon Securities. 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 in such city.
"Board of Directors" means, with respect to the Company or the
Guarantor, either the Board of Directors of the Company or the Guarantor, as
the case may be, or the executive committee of such Board of Directors or other
committee duly authorized to act on behalf of the Board of Directors with
regard to a given matter.
"Board Resolution" means, with respect to the Company or the Guarantor,
a copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be, 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" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions or trust companies in the Place of
Payment are authorized or required by law or executive order to be closed.
"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 on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until any successor corporation
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shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request," "Company Order," "Guarantor Request" and "Guarantor
Order" mean, respectively, a written request or order signed in the name of the
Company or the Guarantor, as the case may be, by its Chairman or any Vice
Chairman of the Board of Directors, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Component Currency": See Section 3.11(i).
"Consolidated Banking Assets" means the aggregate of the assets of all
Subsidiary Banks (including Subsidiaries of such Subsidiary Banks).
"Conversion Date": See Section 3.11(e).
"Conversion Rate": See Section 7.16.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, except that with respect to presentation of Registered Securities
for payment or for registration of transfer and exchange, presentation of
Unregistered Securities for registration and the location of the Securities
Register, such term shall mean such office or the agency of the Trustee
designated for such purpose.
"Coupon" means any interest coupon appertaining to any Security.
"Coupon Security" means any Security authenticated and delivered with
one or more Coupons appertaining thereto.
"Default" has the meaning specified in Section 7.01(c).
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Depositary" means (i) with respect to any series of Securities for
which the Company shall determine that such Securities will be issued as a
Global Security and as a Registered Security, The Depository Trust Company, New
York, New York, another clearing agency or any successor registered under the
Securities and Exchange Act of 1934, as amended, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.05 or 3.01, or (ii) with respect to any series of Securities
for which the
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Company shall determine that such Securities will be issued as a Global
Security and as an Unregistered Security, such person as the Company shall
designate pursuant to Section 2.05 or 3.01, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of
any such series shall mean the Depositary with respect to the Securities of
that series.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Dollar Determination Agent" means the New York clearing house bank, if
any, from time to time selected by the Company for purposes of Section 3.11.
"Dollar Equivalent of the Currency Unit": See Section 3.11(h).
"Dollar Equivalent of the Foreign Currency": See Section 3.11(g).
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Seven.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Official Currency Unit Exchange Rate and (ii)
the Dollar or Foreign Currency amounts of principal, premium, if any, and
interest, if any, respectively (on an aggregate basis and on the basis of a
Security having a principal amount of 1,000 in the relevant currency unit),
payable on the basis of such Official Currency Unit Exchange Rate, sent (in the
case of a telex) or signed (in the case of a certificate) by the Treasurer or
any Assistant Treasurer of the Company and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
"Fully Registered Security" means any Security registered as to
principal and interest, if any.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and authenticated
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and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of such
series or any portion thereof, in either case having the same terms, including,
without limitation, the same issue date, date or dates on which principal is
due, and interest rate or method of determining interest and which, if the
Securities of the series are Registered Securities, shall be registered in the
name of the Depositary, or its nominee.
"Government Obligations" means, with respect to the Securities of any
series, securities which are (i) direct obligations of the government which
issued the currency in which the Securities of such series are denominated or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government which issued the currency in which
the Securities of such series are denominated the timely payment of which is
unconditionally guaranteed by such government, and which, in either case, are
full faith and credit obligations of such government and are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) 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 such depositary 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 depositary 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 depositary receipt.
"Guarantees" means the guarantees of the Guarantor to be endorsed on
the Securities authenticated and delivered hereunder.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture and thereafter
"Guarantor" shall mean such successor corporation.
"Holder" means, with respect to a Registered Security, any person in
whose name at the time a particular Registered Security is registered in the
Securities Register, and with respect to an Unregistered Security, the bearer
of such Unregistered Security, and, with respect to a Coupon, the bearer
thereof.
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"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the forms and terms of particular series of
Securities as contemplated hereunder, regardless of the currency or currency
unit in which such securities are denominated.
"Interest Payment Date," when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on the
Securities of such series.
"Market Exchange Rate": See Section 3.11(i).
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman or
any Vice Chairman of the Board of Directors, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case may be. Each Officers' Certificate shall include the
statements required by Section 1.02.
"Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the Dollar calculated by the agency specified pursuant to Section 3.01
for the Securities of the relevant series (in the case of the ECU, calculated
by the Commission of the European Communities, and currently based on the rates
in effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of the ECU), on the second Business Day (in the city in which such
agency has its principal office) immediately preceding the applicable payment
date.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Guarantor and who shall be
satisfactory to the Trustee. Each Opinion of Counsel shall include the
statements required by Section 1.02.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding," when used with respect to Securities of any or all
series, means, as of the date of determination, all such
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Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent in trust for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered, or Securities which have been paid,
pursuant to this Indenture, unless proof satisfactory to the Trustee is
presented that any such Securities are held by bona fide purchasers;
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02 and (ii)
Securities owned by the Company, the Guarantor or any other obligor upon the
Securities or by any Affiliate of the Company, the Guarantor or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which 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, the Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company or the
Guarantor to pay the principal of, premium, if any, or interest on any
Securities on behalf of the Company in accordance with Section 5.02.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust,
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unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of, and premium, if any
and interest if any on, the Securities of such series are payable as specified
pursuant to Section 3.01.
"Predecessor Securities" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and for the purposes of this definition
any Security authenticated and delivered under Section 3.06 in lieu of a lost,
destroyed or stolen security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee at the location set forth in the first paragraph of this
Indenture, or at such other location as the Trustee may from time to time
designate by written notice to the Company and the Guarantor.
"Principal Subsidiary Bank" means each of (i) Pittsburgh National Bank,
(ii) any other Subsidiary Bank the consolidated assets of which constitute 20%
or more of the consolidated assets of the Guarantor and its Subsidiaries, (iii)
any other Subsidiary Bank designated as a Principal Subsidiary Bank pursuant to
a Board Resolution and set forth in an Officers' Certificate, and (iv) any
Subsidiary that owns, directly or indirectly, any Voting Shares, or securities
convertible into, or options, warrants or rights to subscribe for or purchase
Voting Shares, of any Principal Subsidiary Bank under clause (i), (ii) or
(iii), and in the case of clause (i), (ii), (iii) or (iv) their respective
successors (whether by consolidation, merger, conversion, transfer of
substantially all their assets and business or otherwise) so long as any such
successor is a Subsidiary Bank (in the case of clause (i), (ii) or (iii)) or a
Subsidiary (in the case of clause (iv)).
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed means the price, in the Dollars or the Foreign Currency or currency
unit in which such Security is denominated or which is otherwise provided for
pursuant to this Indenture, at which it is to be redeemed pursuant to this
Indenture.
"Registered Holder" means, with respect to a Registered Security, the
Person in whose name such Security is registered in the Securities Register.
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"Registered Security" means any Security registered as to principal.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date."
"Repayment Date," when used with respect to any Security to be repaid,
means the date fixed for which repayment pursuant to the terms of such
Security.
"Repayment Price," when used with respect to any Security to be repaid,
means the price, in the Dollars or the Foreign Currency or currency unit in
which such Security is denominated or which is otherwise provided for pursuant
to this Indenture, at which it is to be repaid pursuant to the terms of such
Security.
"Required Currency": See Section 1.15.
"Responsible Officer," when used with respect to the Trustee, shall
mean the Chairman or Vice Chairman of the Board of Directors, the Chairman or
Vice Chairman of the Executive Committee of the Board of Directors, the
President, any Vice President, any Second or Assistant Vice President, the
Cashier, any Assistant Cashier, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Senior Trust Officer, any Trust
Officer, any Assistant Trust Officer, the Controller, any Assistant Controller
or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning specified in the second
paragraph of this Indenture and more particularly shall mean any Registered or
Unregistered Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the meanings
specified in Section 3.05.
"Senior Debt Securities" means any series of securities designated as
such pursuant to Section 3.01, and the Coupons, if any, appertaining thereto.
"Senior Company Indebtedness" means the principal of and premium, if
any, and interest on (i) all indebtedness of the Company for money borrowed,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, including any series of Securities designated as
Senior
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Debt Securities pursuant to Section 3.01 hereof, and Coupons, if any,
appertaining thereto except (A) such indebtedness as is by its terms expressly
stated not to be superior in right of payment to any series of Securities
designated as Subordinated Debt Securities pursuant to Section 3.01 hereof or
to rank pari passu with any series of Securities designated as Subordinated
Debt Securities pursuant to Section 3.01 hereof, and (B) any series of
Securities designated as Subordinated Debt Securities pursuant to Section 3.01
hereof, and the Company's 9-7/8% Subordinated Notes Due 2001, and (ii) any
deferrals, renewals or extensions of any such Senior Company Indebtedness. The
term "indebtedness for money borrowed" means any obligation of, or any
obligation guaranteed by, the Company for the repayment of money borrowed,
whether or not evidenced by bonds, debentures, notes or other written
instruments, any capitalized lease obligation and any deferred obligation for
payment of the purchase price of any property or assets.
"Senior Guarantor Indebtedness" means the principal of and premium, if
any, and interest on (i) all indebtedness of the Guarantor for money borrowed,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, including the Guarantees of any series of
Securities designated as Senior Debt Securities pursuant to Section 3.01
hereof, and Coupons, if any, appertaining thereto except (A) such indebtedness
as is by its terms expressly stated not to be superior in right of payment to
the Guarantees of any series of Securities designated as Subordinated Debt
Securities pursuant to Section 3.01 hereof or to rank pari passu with the
Guarantees of any series of Securities designated as Subordinated Debt
Securities pursuant to Section 3.01 hereof, (B) the Guarantor's 8-1/4%
Convertible Subordinated Debentures Due 2008, the Guarantor's Floating Rate
Subordinated Notes Due 1997 and the Citizens Fidelity Corporation Convertible
Subordinated Debentures Due 2005, and (C) the Guarantees of any series of
Securities designated as Subordinated Debt Securities pursuant to Section 3.01
hereof, and the Guarantees of the Company's 9-7/8% Subordinated Notes Due 2001,
and (ii) any deferrals, renewals or extensions of any such Senior Guarantor
Indebtedness. The term "indebtedness for money borrowed" means any obligation
of, or any obligation guaranteed by the Guarantor for the repayment of money
borrowed, whether or not evidenced by bonds, debentures, notes or other written
instruments, any capitalized lease obligation and any deferred obligation for
payment of the purchase price of any property or assets.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
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"Specified Amount": See Section 3.11(i).
"Stated Maturity," when used with respect to any Security or any
installment of principal or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subordinated Debt Securities" means any series of Securities
designated as such pursuant to Section 3.01, and the Coupons, if any,
appertaining thereto.
"Subsidiary" means any corporation a majority of the Voting Shares of
which at the time are owned directly or indirectly by the Guarantor or by one
or more other Subsidiaries or by the Guarantor and one or more other
Subsidiaries.
"Subsidiary Bank" means any Subsidiary that is 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 and either (i) accepts deposits that the depositor has a legal
right to withdraw on demand and engages in the business of making commercial
loans or (ii) is a trust company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and as in force at the
date as of which this instrument was executed, except as provided in Sections
5.08 and 9.05.
"Trustee" means the Person designated as the Trustee for any series of
Securities pursuant to Section 3.01 of this Indenture until any successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor Trustee,
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to the Securities of that series.
"Unregistered Security" means any Security that is not registered as to
principal.
"Valuation Date": See Section 3.11(e).
"Vice President," when used with respect to the Company, the Guarantor
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."
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"Voting Shares" means, as to shares of a particular corporation,
outstanding shares of Capital Stock of any class or classes having voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation (irrespective of whether at
the time stock of any other class or classes shall have or might have voting
power by reason of the failure to pay a dividend or other amount or by reason
of the occurrence of any other contingency).
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of the Indenture, the Company or
the Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which constitutes a
condition precedent) 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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 5.04) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by an 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 or the
Guarantor 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 or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, 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.
Any certificate, statement or opinion of an officer of the Company or
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Company or Guarantor, unless such
officer or counsel, as the case may be, knows that the certificate or opinion
or representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 1.04. Acts of Security Holders.
(a) Any request, demand, authorization, direction, notice consent,
waiver or other action provided by this Indenture to be given or taken by
Security Holders may be embodied in and evidenced (1) by one or more
instruments of substantially similar tenor signed by such Security Holders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company and the Guarantor, (2) by the record of Holders voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Fourteen, or (3) by a combination of
such instrument or instruments and any such record of such a meeting of
Holders. 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 Security 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 shall be sufficient for any purpose of this
Indenture and (subject to Section 8.01) conclusive in favor of the Trustee and
the Company and the Guarantor, if made in the manner provided in this Section.
With respect to Registered Securities, the Company may set a record date for
purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 10 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 8.01 of this Indenture prior to such solicitation.
If a record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date. No such vote or consent shall be valid or effective for
more than 120 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.
(c) The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Register for such series; the ownership of unregistered Securities of
any series and Coupons shall be proved by proof of possession reasonably
satisfactory to the Trustee.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind 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, offered to be done or
omitted to be done by the Trustee, the Company or the Guarantor in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 1.05. Notices, etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Security 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 Security Holder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at the
Principal Corporate Trust Office, and, in respect of Unregistered
Securities or Coupons, at the Corporate Trust office of the Trustee
referred to in Section 5.02, or
(2) the Company or the Guarantor by the Trustee or by any
Security Holder shall be sufficient for every purpose hereunder (except
as provided in Section 7.01(a)(3)) if in writing and mailed, first
class, postage prepaid, to the Company or the Guarantor, as the case
may be, addressed to it at the address of its principal executive
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company or the Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act
of Security Holders or other document provided or permitted by this Indenture
shall be in the English language, except that any published notice may be in
the official language of the country of publication.
SECTION 1.06. Notices to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1)
if any of the Securities affected by such event are Fully Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing
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and mailed by first class mail, postage prepaid, to such Holders as their names
and addresses appear in the Security Register within the time prescribed and
(2) if any of the Securities affected by such event are Unregistered
Securities, or Coupon Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed by first
class mail, postage prepaid, to such Holders in the manner and the extent
provided in Section 313(c) of the Trust Indenture Act and if published in an
Authorized Newspaper or Newspapers in such city or cities as may be provided
elsewhere in this Indenture or specified as contemplated by Section 3.01 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. 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 on such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given. In the
event of suspension of regular mail service or for any other reason it shall be
impracticable to give such notice to Registered Holders by mail, then such a
notification as shall be made to Registered Holders 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 by reason of any other cause it shall be impracticable to publish any notice
to Holders of Unregistered Securities or of Coupons as provided above then said
notification to Holders of Unregistered Securities or of Coupons as shall be
given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317 of TIA, through operation of Section
318(c) thereof, such imposed duties shall control.
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SECTION 1.08. 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 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities or any
Coupons appertaining thereto shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities or Coupons express or
implied shall give to any Person, other than the parties hereto and their
successors and assigns hereunder, the Holders of the Securities and the Holders
of the Coupons, any benefit of any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Legal Holidays.
In any case where the date of an Interest Payment Date, a Redemption
Date or a Repayment Date or the Stated Maturity of any Security or Coupon shall
not be a Business Day at any Place of Payment with respect to the Securities of
that series, then (notwithstanding any other provision of the Securities, the
Coupons appertaining thereto or this Indenture) payment of the principal of or
interest on any such Securities or Coupons need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the nominal date of any such Interest Payment Date, Redemption
Date or Repayment Date or Stated Maturity, and no interest shall accrue for the
period from and after such nominal date.
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SECTION 1.13. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
except that the rights, duties and liabilities of the Trustee as a trustee and
any rights and immunities limiting such liability shall be governed by the laws
of the state in which the principal office of the Trustee shall be located
without regard to principles of conflicts of laws.
SECTION 1.14. Moneys of Different Currencies To Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any money, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
SECTION 1.15. Payment To Be in Proper Currency.
Each reference in any Security, or in the Board Resolution relating
thereto, to any currencies or currency units shall be of the essence. Subject
to Section 3.11, the Company and the Guarantor agree, to the fullest extent
that they may effectively do so under applicable law, that their obligation to
make any payment of principal of (and premium, if any) and interest on any
Security or any Coupon (i) shall not be discharged or satisfied by any tender
by the Company or the Guarantor, or recovery by the Trustee, either pursuant to
any judgment (whether or not entered into in accordance with Section 7.16 or
otherwise) in any currencies or currency units other than the currencies or
currency units then due and payable (the "Required Currency"), except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. Except as permitted under Section 3.11, if any such tender or
recovery is in a currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company and the Guarantor, and the Company and the Guarantor shall remain
fully liable for any shortfall or delinquency in the full amount of Required
Currency
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then due and payable, and in no circumstances shall the Trustee be liable
therefor. The Company and the Guarantor hereby waive any defense of payment
based upon any such tender or recovery which is not in the Required Currency,
or which, when exchanged for the Required Currency by the Trustee, is less than
the full amount of Required Currency then due and payable.
ARTICLE TWO
FORMS
SECTION 2.01. Forms Generally.
The Guarantees and the Securities of each series, and the Coupons, if
any, to be attached thereto, and the certificates of authentication on the
Securities shall be in substantially the form as shall be established pursuant
to this Article and Section 3.01 in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture or as may be required to comply with any law or
with any rules or regulations made pursuant thereto or with any rules or
regulations of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Guarantees, Securities and Coupons,
if any, as evidenced by their execution of the Guarantees, Securities and
Coupons, if any.
The definitive Guarantees, Securities and Coupons, if any, of each
series shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the officers
executing such Guarantees, Securities and Coupons, if any, as evidenced by
their execution of such Guarantees, Securities and Coupons, if any, subject,
with respect to the Securities and Guarantees of any series, to the rules of
any securities exchange on which the Securities of such series are listed.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall be
in substantially the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
[NAME OF TRUSTEE], as Trustee
By________________________________
Authorized Officer
SECTION 2.03. Forms of Security.
Each Security shall be in a form approved from time to time by or
pursuant to a Company Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the delivery of a Security to the
Trustee for authentication in any form approved by or pursuant to a Company
Board Resolution, the Company shall deliver to the Trustee the Company Board
Resolution by or pursuant to which such form of Security has been approved,
which Company Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved by or pursuant thereto,
and, if a Company Board Resolution authorizes a specific officer or officers of
the Company to approve a form of Security, a certificate of such officer or
officers approving the form of Security attached thereto. Any form of Security
approved by or pursuant to a Company Board Resolution must be acceptable as to
form to the Trustee, such acceptance to be evidenced by a certificate signed by
a Responsible Officer of the Trustee and delivered to the Company or by the
Trustee's execution of the certificate of authentication appearing thereon.
SECTION 2.04. Form of Guarantee.
Each Guarantee shall be in a form approved from time to time by or
pursuant to a Guarantor Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the execution of a Guarantee in any
form approved by or pursuant to a Guarantor Board Resolution, the Guarantor
shall deliver to the Trustee the Guarantor Board Resolution by or pursuant to
which such form of Guarantee has been approved, which Guarantor Board
Resolution shall have attached thereto a true and correct copy of the form of
Guarantee which has been approved by or pursuant thereto, and, if a Guarantor
Board Resolution authorizes a specific officer or officers of the Guarantor to
approve a form of Guarantee, a certificate of such officer or officers
approving the form of Guarantee attached thereto. Any form of Guarantee
approved by or pursuant to a Guarantor Board Resolution must be acceptable as
to form to the Trustee, such
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acceptance to be evidenced by a certificate signed by a
Responsible Officer of the Trustee and delivered to the Guarantor.
SECTION 2.05. Securities Issuable in the Form
of a Global Security.
(a) If the Company shall establish pursuant to Section 3.01 that the
Securities of a particular series are to be issued in whole or in part in one
or more Global Securities as Registered Securities or Unregistered Securities,
then the Company shall execute and the Trustee shall, in accordance with
Section 3.03 and the Company Order delivered to the Trustee thereunder,
authenticate and deliver a Global Security or Securities which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction, and (iv) shall bear a legend substantially to
the following effect: "Except as otherwise provided in Section 2.05 of the
Indenture, this Security may be transferred, in whole but not in part, only to
a nominee of the Depositary, or by a nominee of the Depositary to the
Depositary, or to a successor Depositary or to a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 3.01 for a Global
Security that is a Registered Security must at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered
under the Securities and Exchange Act of 1934, as amended, and any other
applicable statute or regulation.
(b) Notwithstanding any other provision of this Section 2.05 or of
Section 3.05, the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 3.05, only to a nominee of
the Depositary for such series or by a nominee of the Depositary to the
Depositary, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
eligible under Section 2.05(a) and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.05 shall no longer be applicable to the
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Securities of such series and the Company will execute, and the Trustee will,
in accordance with Section 3.03 and a Company Order delivered to the Trustee,
authenticate and deliver, Securities of such series, in like tenor and terms in
definitive form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in
exchange for such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.05 shall no longer
apply to the Securities of such series. In such event the Company will execute
and the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Securities of such
series, in like tenor and terms in definitive form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. If specified by the Company pursuant to Section 3.01 with respect to
a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee, upon
receipt of an Officer's Certificate evidencing such determination by the
Company, will authenticate and deliver definitive Securities of such series
without service charge:
(1) to the Depositary or to each Person specified by such
Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security of like tenor and
terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities delivered to Holders
thereof.
In any exchange provided for in this Section 2.05(c), the Company will
execute and the Trustee, pursuant to a Company Order, will authenticate and
deliver Securities
(i) as Registered Securities in authorized denominations, if
the Securities of such series are issuable as Registered Notes;
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(ii) as Unregistered Securities in authorized denominations,
with Coupons, if the Securities of such series are issuable as
Unregistered Securities; or
(iii) as either Registered or Unregistered Securities, if the
Securities of such series are issuable in either form.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such
Registered Securities to the persons in whose names such Securities are so
registered or to the Depositary in accordance with a Company Order. The Trustee
shall deliver Unregistered Securities issued in exchange for a Global Security
pursuant to this Section to the Depositary or to the Persons at such addresses,
and in such authorized denominations, as the Depositary for such global Note,
pursuant to instructions from its direct or indirect participants or otherwise
shall instruct the Trustee in writing.
ARTICLE THREE
THE SECURITIES AND THE GUARANTEES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
up to the aggregate principal amount of Securities from time to time authorized
by or pursuant to a Company Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Company Board Resolution, and
set forth in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto, which shall be delivered to the Trustee
prior to the issuance of Securities of any series:
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(1) the form of the Securities of the series and the Coupons,
if any, appertaining thereto;
(2) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(3) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to this Article Three and Sections
2.05, 3.05, 3.06 and 4.03);
(4) the date or dates on which such Securities may be issued;
(5) the date or dates, which may be serial, on which the
principal of, and premium, if any, on the Securities of such series
shall be payable;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of such series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and, in the case
of Registered Securities, the record dates, if other than as set forth
in Section 3.07, for the determination of Holders to whom interest is
payable, whether any special terms and conditions relating to the
payment of additional amounts in respect of payments on the Securities
of such series shall in the event of certain changes in the United
States Federal income tax laws apply to Unregistered Securities of such
series or to Registered Securities of such series, and the
circumstances, if any, under which a Holder may elect to receive
interest in a form other than as provided in Sections 3.11(a)(1),
3.11(b)(1) or 5.01;
(7) whether Securities of the series shall be designated as
Senior Debt Securities or Subordinated Debt Securities;
(8) the place or places where the principal of, and premium, if
any, and interest, if any, on Securities of the series shall be payable
(if other than as provided in Section 5.02);
(9) the provisions, if any, establishing the price or prices at
which, the period or periods within which and the terms and conditions
upon which Securities of the series
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may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise, and whether any special
terms and conditions of redemption shall apply to Unregistered
Securities of such series or to Registered Securities of such series;
(10) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to the sinking fund or
analogous provisions or at the option of a Holder thereof and the price
or prices, in the currency or currency unit in which the Securities of
such series are payable, at which and the period or periods within
which and the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(11) if other than denominations of 1,000 and any integral
multiple thereof, in Dollars or the Foreign Currency or currency unit
in which the Securities of such series are denominated, the
denominations in which Securities of such series shall be issuable;
(12) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.01 or provable in bankruptcy pursuant to Section
7.04;
(13) whether payment of the principal of, premium, if any, and
interest, if any, on the Securities of such series shall be with or
without deduction for taxes, assessments or governmental charges, and
with or without reimbursement of taxes, assessments or governmental
charges paid by Holders;
(14) any Events of Default or Defaults with respect to the
Securities of such series, if not set forth herein;
(15) in case the Securities of such series do not bear
interest, the applicable dates for the purpose of clause (a) of Section
6.01;
(16) whether the Securities of such series are to be issued as
Registered Securities (with or without Coupons) or Unregistered
Securities or both, and, if Unregistered Securities or Coupon
Securities are issued, whether Unregistered Securities or Coupon
Securities of such series may be exchanged for Registered Securities or
Fully Registered Securities of such series and whether Registered
Securities or Fully Registered Securities of such series may be
exchanged for Unregistered Securities of such series
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and the circumstance under which and the place or places
where any such exchanges, if permitted, may be made;
(17) the currency or currencies, or currency unit or currency
units, whether in Dollars or a Foreign Currency or currency unit, in
which the principal of, and premium, if any, and interest, if any, on
the Securities of such series or any other amounts payable with respect
thereto, including, without limitation, Coupons, are to be denominated,
payable, redeemable or repurchaseable, as the case may be, and whether
such principal, premium, if any, and interest, if any, payable
otherwise than in Dollars may, at the option of the Holders of any
Security of such series, also be payable in Dollars;
(18) if other than as set forth in Section 11.01, provisions
for the satisfaction and discharge of the indebtedness represented by
the Securities of such series;
(19) whether the Securities of such series are issuable as a
Global Security and, in such case, the identity of the Depositary for
such series;
(20) if the amount of payment of principal of (and premium, if
any) or interest on the Securities of such series may be determined
with reference to an index, formula or other method based on a coin,
currency or currency unit other than that in which the Securities are
stated to be payable or otherwise, the manner in which such amounts
shall be determined;
(21) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(22) any trustees, paying agents, transfer agents or registrars
with respect to the Securities of such series, and, if the Securities
of such series are to be denominated and payable in any currency other
than Dollars, the initial Dollar Determination Agent.
The payment of principal of and premium, if any, and interest on the
Securities of each series shall be unconditionally guaranteed by the Guarantor.
The Trustee shall be entitled to receive and shall be fully protected
in relying on, in addition to the Opinion of Counsel to be furnished to the
Trustee pursuant to Section 1.02 with the Officers' Certificate relating to the
issuance of any series of Securities, an Opinion of Counsel stating that:
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(i) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(ii) all laws and requirements with respect to the form and
execution by the Company and the Guarantor of the supplemental
indenture, if any, have been complied with and that the execution and
delivery of the supplemental indenture, if any, by the Trustee will not
violate this Indenture, the Company and the Guarantor have corporate
power to execute and deliver any such supplemental indenture and have
taken all necessary corporate action for those purposes and any such
supplemental indenture has been executed and delivered and constitutes
the legal, valid and binding obligation of the Company and the
Guarantor enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect);
(iii) the form and terms of such Securities have been
established in conformity with the provisions of this Indenture;
(iv) all laws and requirements with respect to the execution
and delivery by the Company of such Securities and by the Guarantor of
the Guarantees endorsed thereon have been complied with and the
authentication and delivery of any such Securities by the Trustee will
not violate the terms of the Indenture, the Company has the corporate
power to issue such Securities and the Guarantor has the corporate
power to issue such Guarantees, and such Securities and Guarantees have
been duly authorized and delivered by the Company and the Guarantor,
respectively, and, assuming due authentication and delivery of such
Securities by the Trustee, such Securities and Guarantees constitute
legal, valid and binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms (subject, as
to enforcement of remedies to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect) and entitled to the benefits of
this Indenture, equally and ratably with all other Guarantees and all
other Securities, if any, of such series Outstanding;
(v) the amount of the Securities Outstanding, including such
Securities, does not exceed the amount at the time permitted by law;
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(vi) this Indenture is qualified under the Trust Indenture Act;
and
(vii) the issuance of such Securities will not contravene the
Articles of Incorporation or the By-Laws of the Company or the
Guarantor or result in any violation of any of the terms or the
provisions of any indenture, mortgage or other agreement known to such
counsel by which the Company, the Guarantor or any of its subsidiaries
is bound.
In addition, the opinion and the Officers' Certificate will cover such
other matters as the Trustee may reasonably request.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.03 or in the Officers' Certificate delivered
pursuant to Section 3.01. In the absence of any specification with respect to
the Securities of any series, the Securities of such series shall be issuable
as Fully Registered Securities in denominations of $1,000 or any integral
multiple thereof, and shall be payable in Dollars.
SECTION 3.03. Execution, Authentication and Delivery.
The Securities and Coupons, if any, appertaining thereto, shall be
executed on behalf of the Company and the Guarantees endorsed thereon shall be
executed on behalf of the Guarantor by, respectively, its Chairman, Vice
Chairman, President or one of its Executive Vice Presidents or Senior Vice
Presidents under its corporate seal, which may be in facsimile form and may be
imprinted or otherwise reproduced thereon and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities and Coupons, if any, appertaining thereto, or Guarantees may be
manual or facsimile. Typographical and other minor errors or defects in any
such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security or Coupon that has been duly
authenticated and delivered by the Trustee.
Securities and Coupons, if any, appertaining thereto, and Guarantees
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company or the Guarantor, respectively, shall bind
the Company and the Guarantor, respectively, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities, and Coupons, if
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any, appertaining thereto, or did not hold such offices at the date of such
Securities and Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, and Coupons, if any,
appertaining thereto, of any series executed by the Company with Guarantees
endorsed thereon executed by the Guarantor to the Trustee for authentication;
and the Trustee shall authenticate and deliver such Securities, and Coupons, if
any, appertaining thereto, to or upon a Company Order, an Officers' Certificate
and an Opinion of Counsel without any further action by the Company or the
Guarantor.
The Trustee shall have the right to decline to authenticate and deliver
any Security under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability.
All Registered Securities shall be dated the date of their
authentication, provided, however, that if provided for in the form of
Security, interest may accrue from a date other than the authentication date.
No Security or Coupon appertaining thereto or Guarantee endorsed
thereon shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate or
supplemental indenture otherwise required pursuant to Section 3.01 or the
Company Order, Officers' Certificate and Opinion of Counsel required pursuant
to this Section 3.03 at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to
be issued; provided, however, that any subsequent request by the Company to the
Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request
the statements made in the Officers' Certificate delivered pursuant to Section
3.01 shall be true and correct on the date thereof as if made on and as of the
date thereof and that
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the Opinion of Counsel delivered at or prior to such time of authentication
shall relate to all subsequent issuances of Securities of such series that are
identical to the Securities issued in the first issuance of Securities of such
series.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities for any series, the
Company may execute and upon Company Order the Trustee shall authenticate and
deliver temporary Securities (having duly executed Guarantees thereon) for such
series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities of any series
shall be issuable in any authorized denomination, and substantially in the form
of the definitive Securities of such series in lieu of which they are issued
but with such omissions, insertions and variations as may be appropriate for
temporary securities, all as may be determined by the Company with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Company and the Guarantee thereon shall be
executed by the Guarantor and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Temporary Securities may be issued as Registered
Securities, or Unregistered Securities, with or without one or more Coupons
attached. Without unreasonable delay the Company shall execute and shall
furnish definitive Securities of such series and the Guarantor shall execute
the Guarantee thereon and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge to a Holder at the Corporate
Trust Office of the Trustee, or, in the case of temporary Securities issued in
respect of Unregistered Securities of any series, at the Corporate Trust Office
of the Trustee located in a city specified elsewhere in this Indenture or
pursuant to Section 3.01, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series with appropriate Coupons, if any,
attached. Such exchange shall be made by the Company at its own expense and
without any charge therefor to a Holder except that in case of any such
exchange involving any registration of transfer the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Securities of
any series and the Guarantees endorsed thereon shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and the Guarantees endorsed thereon authenticated and delivered
hereunder.
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SECTION 3.05. Registration, Registration of Transfer and Exchange.
Subject to the conditions set forth below, Securities of any series may
be exchanged for a like aggregate principal amount of Securities of the same
series (having Guarantees endorsed thereon) of other authorized denominations.
Securities to be exchanged shall be surrendered together, in the case of Coupon
Securities, with all unmatured Coupons and matured Coupons in default
appertaining thereto, at the offices or agencies to be maintained by the
Company for such purposes as provided in Section 5.02, and the Company shall
execute and register, the Guarantor shall execute the Guarantees endorsed
thereon, and the Trustee shall authenticate and deliver in exchange therefor
the Security or Securities which the Holder making the exchange shall be
entitled to receive.
The Company shall keep or cause to be kept, at one of its said offices
or agencies, a register for each series of Securities issued hereunder which
may include Registered Securities (hereinafter collectively referred to as the
"Securities Register") in which, subject to such reasonable regulations as it
may prescribe, and subject also to the provisions of Section 2.05, the Company
shall provide for the registration of Registered Securities of such series and
shall register the transfer of Registered Securities of such series as in this
Article Three provided. The Securities Register shall be in written form or in
any other form capable of being converted into written form within a reasonable
time. The Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Registered Securities and registering transfers of Registered
Securities as herein provided. Subject to the provisions of Section 2.05, upon
due presentment for registration of transfer of any Security of any series at
any such office or agency, the Company shall execute and register, the
Guarantor shall execute the Guarantees endorsed thereon, and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Securities of the same series (having Guarantees
endorsed thereon) for an equal aggregate principal amount.
Subject to the provisions of Section 2.05, at the option of the Holder
thereof, Securities of any series, whether Registered Securities or
Unregistered Securities, which by their terms are registrable as to principal
only or as to principal and interest, may, to the extent and under the
circumstances specified pursuant to Section 3.01, be exchanged for such
Registered Securities with Coupons or Fully Registered Securities of such
series, as may be issued by the terms thereof. Securities of any series,
whether Registered Securities or Unregistered Securities, which by their terms
provide for the issuance of Unregistered Securities, may not, except to the
extent and under the circumstances specified
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pursuant to Section 3.01, be exchanged for Unregistered Securities of such
series. Unregistered Securities of any series issued in exchange for Registered
Securities of such series between the record date for such Registered
Securities and the next Interest Payment Date will be issued without the Coupon
relating to such Interest Payment Date, and Unregistered Securities surrendered
in exchange for Registered Securities between such dates shall be surrendered
without the Coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Unregistered Security, but will be payable only to
the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company and Guarantor to be maintained as provided in Section
5.02, such Security shall be registered as to principal in the name of the
Holder thereof, and such registration shall be noted on such Security. Any
Security so registered shall be transferable on the Securities Register of the
Company upon presentation of such Security at such office or agency for similar
notation thereon, but, to the extent permitted by law, such Security may be
discharged from registration by being in a like manner transferred to bearer,
whereupon transferability by delivery shall be restored. To the extent
permitted by law, Unregistered Securities shall continue to be subject to
successive registrations and discharges from registration at the option of the
Holders thereof.
Unregistered Securities and Coupons shall be transferred by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Securities
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing.
Each Security and Guarantee endorsed thereon issued upon registration
of transfer or exchange of Securities pursuant to this Section 3.05 shall be
the valid obligation of the Company and Guarantor, evidencing the same
indebtedness and entitled to the same benefits under this Indenture as the
Security or Securities surrendered upon registration of such transfer or
exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange 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
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than exchanges pursuant to Section 3.04, 4.03 or 9.06 not involving
any transfer.
The Company shall not be required (a) to issue, exchange or register
the transfer of any Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption except, in the case
of any Security to be redeemed in part, the portion thereof not to be so
redeemed.
None of the Company, the Trustee, any Paying Agent or Securities
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
SECTION 3.06. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities or Coupons.
In case any temporary or definitive Security or Coupon shall become
mutilated or defaced or be destroyed, lost or stolen, and in the absence of
notice to the Company, the Guarantor, or the Trustee that such Security or
Coupon has been acquired by a bona fide purchaser, the Company in the case of a
mutilated Security or Coupon shall, and in the case of a lost, stolen or
destroyed Security or Coupon may in its discretion, execute, and upon a Company
Request, the Trustee shall authenticate and deliver, a new Security with like
Coupons, if any, as those attached to the mutilated, destroyed, lost or stolen
Security (so that neither gain nor loss in interest shall result), of the same
series, with a duly executed Guarantee thereon, of like tenor and principal
amount, and bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, or a new Coupon, as appropriate, in exchange and
substitution for the mutilated Security or Coupon, or in lieu of and in
substitution for the Security or Coupon so destroyed, lost or stolen, or if any
such Security or Coupon shall have matured or shall be about to mature, instead
of issuing a substituted Security or Coupon, the Company in its discretion may
pay or authorize the payment of the same without surrender thereof (except in
the case of a mutilated Security or Coupon) instead of issuing a new Security
or Coupon; provided, however, that interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside of the United States, unless otherwise provided pursuant
to Section 3.01. In every case the applicant for a substituted Security or
Coupon shall furnish to
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the Company, the Guarantor and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company,
the Guarantor, and the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Upon the issuance of any substitute Security or Coupon under this
Section 3.06, 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 substitute Security or Coupon of any series issued pursuant to
the provisions of this Section 3.06 by virtue of the fact that any such
Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, guaranteed by the Guarantor, whether or
not the destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall
be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities and Coupons of
such series duly authenticated and delivered hereunder. All Securities and
Coupons shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions of this Section 3.06 are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall, to the fullest extent
permitted under applicable law, preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 3.01, interest on
any Fully 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 at the
close of business on the Regular Record Date for such interest if provided for
in the Board Resolution pursuant to Section 3.01. In the case of a Security
issued between a record date and the initial Interest Payment Date relating to
such record date, interest for the period beginning on the date of issue and
ending on such initial Interest Payment Date shall be paid to the person to
whom such Security shall have been originally issued. In the case of
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Coupon Securities, the Holder of any Coupon shall be entitled to receive the
interest, if any, payable on such Interest Payment Date, upon surrender on such
Interest Payment Date of the Coupon appertaining thereto in respect of such
interest.
Any interest on any Fully Registered Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company or the Guarantor at its
election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company or the Guarantor may elect to make payment of
any Defaulted Interest to the Persons in whose names such Fully
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company or the Guarantor shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on
each Fully Registered Security and the date of the proposed payment,
and at the same time the Company or the Guarantor, as the case may be,
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 prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company or the
Guarantor, as the case may be, of such Special Record Date, and, in the
name and at the expense of the Company or the Guarantor, as the case
may be, 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 a Fully Registered Security
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company or the
Guarantor, as the case may be, cause a similar notice to be published
at least once in an Authorized Newspaper in the Place of Payment, but
such publication shall not be a condition precedent to the
establishment of such Special
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Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been given as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Fully Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company or the Guarantor may make payment of any
Defaulted Interest on any such Fully Registered Security in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Fully Registered Securities of that series may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company or the Guarantor to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security of
any series delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION 3.08. Persons Deemed Owners.
The Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor, or the Trustee may deem and treat the Person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Security (notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.07), if such
registered Security is a Fully Registered Security, interest, if any, on, such
Registered Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Guarantor, the Trustee nor
any agent of the Company, the Guarantor, or the Trustee shall be affected by
notice to the contrary. The Company, the Guarantor, the Trustee, and any agent
of the Company, the Guarantor, or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon, whether or not the Security
to which such Coupon appertained be registered, as the absolute owner of such
Security or Coupon for the purposes of receiving payment thereof or on account
thereof and for all other purposes whatsoever whether or not such Security or
Coupon be overdue, and neither the Company, the Guarantor, the Trustee, any
Paying Agent nor any Security Registrar shall be
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affected by notice to the contrary. All such payments so made to any Holder for
the time being, or upon his order shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon such Security or Coupon.
SECTION 3.09. Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, and all Coupons surrendered for payment or exchange, if
surrendered to the Company, the Guarantor, or any Paying Agent or any
Securities Registrar, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities or
Coupons shall be authenticated and delivered in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Securities and Coupons held by it and deliver a
certificate of destruction to the Company. If the Company or the Guarantor
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such securities,
or the Guarantee endorsed thereon, unless and until the same are delivered to
the Trustee for cancellation.
SECTION 3.10. Computation of Interest.
Except as otherwise specified in the form of Security for any series
approved or established pursuant to Section 2.03 or in the Officers'
Certificate delivered pursuant to Section 3.01 with respect to Securities of
any series, interest on the Securities of each series shall be computed on the
basis of a year of twelve 30-day months.
SECTION 3.11. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series denominated in
Dollars or in Foreign Currency or in any currency unit, which hereafter shall
include without limitation ECU, with respect to which the Holders of Securities
of such series have not made the election provided for in paragraph (b) below,
the following payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph
(e) below, payment of the principal of and premium, if any, on any
Registered Security will be made at the Place of Payment by delivery of
a check in the currency
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or currency unit in which the Security is payable on the payment date
against surrender of such Registered Security, and any interest on any
Fully Registered Security will be paid at the Place of Payment by
mailing a check in the currency or currency unit in which such interest
is payable to the Person entitled thereto at the address of such Person
appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest on such Security
may also, subject to applicable laws and regulations, be made at such
other place or places as may be designated by the Company or Guarantor
by any appropriate method.
(b) With respect to Registered Securities of any series denominated in
any Foreign Currency or currency unit the following payment provisions shall
apply, except as otherwise provided in paragraphs (e) and (f) below:
(1) It may be provided pursuant to Section 3.01 with respect to
the Securities of such series that Holders shall have the option to
receive payments of principal of, premium, if any, and (with respect to
Fully Registered Securities only) interest, if any, on such Securities
in any of the currencies which may be designated for such election in
such Securities by delivering to the Trustee a written election, to be
in form and substance satisfactory to the Trustee, prior to the close
of business on the record date immediately preceding the applicable
payment date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any such
change must be made prior to the close of business on the record date
immediately preceding the next payment date to be effective for the
payment to be made on such payment date and no such change may be made
with respect to payments to be made on any Security of such series with
respect to which notice of redemption has been given by the Company
pursuant to Article Four). Any Holder of any such Security who shall
not have delivered any such election to the Trustee prior to the close
of business on the applicable record date will be paid the amount due
on the applicable payment date in the relevant currency unit as
provided in paragraph (a) of this Section 3.11. Payment of principal of
and premium, if any, shall be made on the payment date against
surrender of such Security. Payment of interest, if any, shall be made
at the Place of Payment by mailing at such location a check, in the
applicable currency or currency unit, to the Person entitled thereto at
the address of such Person appearing on the Securities Register.
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(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on such
Security may also, subject to applicable laws and regulations, be made
at such other place or places as may be designated by the Company or
Guarantor by any appropriate method.
(c) Payment of the principal of and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will be made
unless otherwise specified pursuant to Section 3.01 or Section 9.01(6) by a
Paying Agent at such place or places outside the United States as may be
designated by the Company or Guarantor pursuant to any applicable laws or
regulations by any appropriate method in the currency or currency unit in which
the Security is payable (except as provided in paragraph (e) below) on the
payment date against surrender of the Unregistered Security, in the case of
payment of principal and premium, if any, or the relevant Coupon, in the case
of payment of interest, if any. Except as provided in paragraph (e) below,
payment with respect to Unregistered Securities and Coupons will be made by
check, subject to any limitations on the methods of effecting such payment as
shall be specified in the terms of the Security established as provided in
Section 3.01 and Section 9.01(6) and as shall be required under applicable laws
and regulations.
(d) Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company and the Guarantor a
written notice specifying, in the currency or currency unit in which each
series of the Securities is payable, the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities to be
made on such payment date, specifying the amounts so payable in respect of
Fully Registered Securities, Registered Securities with Coupons and
Unregistered Securities and in respect of the Registered Securities as to which
the Holders of Securities denominated in any currency unit shall have elected
to be paid in another currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 3.01 and if at least one Holder has made such election, then, not later
than the second Business Day preceding each payment date the Company will
deliver to the Trustee and each Paying Agent an Exchange Rate Officer's
Certificate in respect of the Dollar or Foreign Currency payments to be made on
such payment date. The Dollar or Foreign Currency amount receivable by Holders
of Registered Securities denominated in a currency unit who have elected
payment in such currency as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Official Currency Unit Exchange
Rate set forth in the applicable Exchange Rate Officer's Certificate.
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(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if the ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, or if any other currency unit in which a Security is denominated
or payable ceases to be used for the purposes for which it was established,
then with respect to each date for the payment of principal of, or premium, if
any, and interest, if any, on the applicable Securities denominated or payable
in such Foreign Currency, the ECU or such other currency unit occurring after
the last date on which such Foreign Currency, the ECU or such other currency
unit was so used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date. The Dollar amount to be paid by the
Company or the Guarantor to the Paying Agent and by the Paying Agent to the
Holders of such Securities with respect to such payment date shall be the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit as determined by the Dollar
Determination Agent as of the record date, if any, with respect to any Interest
Payment Date, or the fifteenth day before the Maturity of an installment of
principal (the "Valuation Date"), in the manner provided in paragraph (g) or
(h) below.
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency as provided for by
paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, such Holder shall receive payment in such currency unit, and if ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, or if any other such currency unit ceases to be used for the
purposes for which it was established, such Holder shall receive payment in
Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined
by, and shall be set forth in a certificate delivered to the Company, the
Guarantor, the Trustee and each Paying Agent of, the Dollar Determination Agent
as of each Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Valuation
Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by, and shall be set forth in a certificate delivered to the Company, the
Guarantor, the Trustee and each Paying Agent
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of, the Dollar Determination Agent as of each Valuation Date and shall be the
sum obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate on the Valuation Date for such Component Currency.
(i) For purposes of Section 3.11 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the
relevant currency unit on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided
or multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified amounts of
such two or more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency divided by the number of
currencies into which such Component Currency was divided, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted in New York City on
the Valuation Date as certified for customs purposes by the Federal Reserve
Bank of New York. If such rates are not available for any reason with respect
to one or more currencies for which an Exchange Rate is required, the Dollar
Determination Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency in question, or such other
quotations as the Dollar Determination Agent shall deem appropriate. Unless
otherwise specified by the Dollar Determination Agent, if there is
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more than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
All decisions and determinations of the Dollar Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit and the Market Exchange Rate shall be in its sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company, the Guarantor, the Trustee,
any Paying Agent and all Holders of the Securities and Coupons denominated or
payable in the relevant currency or currency units. In the event that a Foreign
Currency ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.06 to
the Holders) specifying the Conversion Date. In the event the ECU ceases to be
used both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities, or
any other currency unit in which Securities or Coupons are denominated or
payable, ceases to be used for the purposes for which it was established, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.06 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give notice to the Trustee. The Trustee shall be fully justified and
protected in relying conclusively and acting upon information received by it
from the Company and the Dollar Determination Agent, if any, and shall not have
any duty or obligation to determine such information independently.
SECTION 3.12. Unconditional Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security and Coupons, if any, appertaining thereto authenticated and delivered
by the Trustee and to the Trustee, the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, and interest on
such Security and Coupons, if any, appertaining thereto, net of any taxes
required to be withheld, when and as the same shall become due and
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payable, whether by declaration thereof or otherwise, in accordance with the
terms of such Security or Coupons, if any, appertaining thereto and of this
Indenture. In case of default by the Company in the payment of any such
principal, sinking fund payment, premium or interest, the Guarantor agrees duly
and punctually to pay the same. The Guarantor hereby agrees that its
obligations hereunder or under any Guarantee shall be absolute and
unconditional irrespective of any invalidity, irregularity or unenforceability
of any such Security, or Coupons, if any, appertaining thereto or this
Indenture, any failure to enforce the provisions of any such Security, or
Coupons, if any, appertaining thereto or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto by the
holder of such Security, or Coupons, if any, appertaining thereto or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to any such Security,
or Coupons, if any, appertaining thereto or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that its obligation hereunder or
under any Guarantee will not be discharged as to any such Security, or Coupons,
if any, appertaining thereto except by payment in full of the principal thereof
and premium, if any, and interest thereon.
The Guarantor shall be subrogated to all rights of the holder of any
Security and Coupons, if any, appertaining thereto against the Company in
respect of any amounts paid by the Guarantor pursuant to the provisions of any
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of and premium, if any, and interest then due
on all Securities and Coupons, if any, appertaining thereto shall have been
paid in full.
The Guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Security, or Coupons, if any,
appertaining thereto until the certificate of authentication on such Security,
or Coupons, if any, appertaining thereto shall have been signed by the Trustee.
The rights and claims of the Trustee and the Holders of Securities and
Coupons, if any, appertaining thereto against the Guarantor under this Section
3.12 will be subordinated to the extent provided in Section 12.04.
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SECTION 3.13. Execution of Guarantees.
To evidence its Guarantee to the Holders of Securities and Coupons, if
any, appertaining thereto, specified in Section 3.12, the Guarantor hereby
agrees to execute the Guarantees, in substantially the form above described, to
be endorsed on each security and endorsed or referenced on each Coupon, if
any, appertaining thereto authenticated and delivered by the Trustee. Each
such Guarantee shall be signed on behalf of the Guarantor as set forth in
Section 3.03, prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of the Guarantor.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
SECTION 4.02. Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Securities of any series (or all or
part of the Unregistered Securities of such series or all or any part of the
Registered Securities of such series, if the terms and conditions of redemption
shall differ with respect to Unregistered Securities and Registered Securities
of such series as specified in the terms of such Securities established
pursuant to Section 3.01) in accordance with their terms, it shall fix a
Redemption Date and shall provide notice of such redemption to the Trustee at
least 60 days prior to such Redemption Date, and at least 30 and not more than
60 days prior to such Redemption Date to the Holders of Securities of such
series so to be redeemed as a whole or in part in the manner provided in
Section 1.06.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture
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establishing such series, if such be the case, together with a brief statement
of the facts permitting such redemption, that payment will be made upon
presentation and surrender of the applicable Securities, that, unless otherwise
specified in such notice, Coupon Securities of any series, if any, surrendered
for payment must be accompanied by all Coupons, if any, maturing subsequent to
the date fixed for redemption, failing which the amount of any such missing
Coupon or Coupons will be deducted from the sum due for payment, that any
interest accrued to the Redemption Date will be paid as specified in said
notice, and that on and after said Redemption Date any interest thereon or on
the portions thereof to be redeemed will cease to accrue. If less than all the
Securities of any series are to be redeemed the notice of redemption shall
specify the numbers of the Securities of such series to be redeemed, and, if
only Unregistered Securities of any series are to be redeemed, and if such
Unregistered Securities may be exchanged for Registered Securities, the last
date on which exchanges of Unregistered Securities for Registered Securities
not subject to redemption may be made. In case any Security of any series is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof and with appropriate Coupons
will be issued, or, in the case of Securities providing appropriate space for
such notation, at the option of the Holders, the Trustee, in lieu of delivering
a new Security or Securities as aforesaid, may make a notation on such Security
of the payment of the redeemed portion thereof.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) the
Redemption Date with respect to the Securities of any series stated in the
notice of redemption given as provided in this Section 4.02, the Company will
deposit with the Trustee or with one or more Paying Agents an amount of money
in the currency or currency unit in which the Securities of such series and any
Coupons appertaining thereto are payable (except as otherwise specified as
contemplated by Section 3.01 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) sufficient
to redeem on such Redemption Date all the Securities or portions thereof so
called for redemption at the applicable Redemption Price, together with accrued
interest to such Redemption Date.
If fewer than all the Securities of a series are to be redeemed (except
in the case of a redemption in whole of the Unregistered Securities, the Coupon
Securities, the Registered Securities or the Fully Registered Securities of
such series), the Company will give the Trustee written notice not less than 60
days
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prior to the Redemption Date as to the aggregate principal amount of Securities
to be redeemed and the Trustee shall select, not more than 60 days prior to the
Redemption Date and in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities of such series or portions hereof (in
multiples of 1,000 in the currency or currency unit in which the Securities of
such series are denominated, except as otherwise set forth in the applicable
form of Security) to be redeemed.
SECTION 4.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities of the series specified in such notice
shall become due and payable on the Redemption Date and at the place or places
stated in such notice at the applicable Redemption Price, together with any
interest accrued to such Redemption Date, and on and after said Redemption Date
(unless the Company shall default in the payment of such Securities at the
applicable Redemption Price, together with any interest accrued to said
Redemption Date) any interest on the Securities or portions of Securities of
any series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities and all Coupons, if any, appertaining thereto at a
Place of Payment in such notice specified, such Securities and Coupons or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued thereon to the
applicable Redemption Date in the currency or currency unit in which the
Securities of such series and the Coupons, if any, appertaining thereto are
payable (except as otherwise specified as contemplated by Section 3.01 for the
Securities of such series and except as provided in Sections 3.11(b), 3.11(e)
and 3.11(f) of this Indenture).
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or 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, the Guarantor, and
the Trustee, if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that, unless otherwise provided pursuant to
Section 3.01 or Section 9.01(6), interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside of the United States.
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Upon presentation of any Security redeemed in part only and the
Coupons, if any, appertaining thereto, the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of such
series and the Coupons, if any, appertaining thereto, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Securities so presented.
SECTION 4.04. Sinking Funds.
(a) The provisions of this Section shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is hereinafter referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is herein
referred to as "optional sinking fund payment."
(b) In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may, at
its option, deliver to the Trustee Outstanding Securities of such series
(together with the unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Company, except Securities of such
series which have been redeemed or previously called for redemption through the
application of mandatory or optional sinking fund payments pursuant to the
terms of the Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the
Securities of such series were originally issued by the Company by way of bona
fide sale or other negotiation for value; provided that such Securities have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
(c) Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee a certificate
signed by the Treasurer or any Assistant Treasurer of the Company specifying
the amount of the next ensuing sinking fund payment for such series pursuant to
the terms of such series, the portion thereof, if any, which is to be satisfied
by payment of cash in the currency or currency unit in which the Securities of
such series and the Coupons, if any,
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appertaining thereto are payable (except as otherwise specified as contemplated
by Section 3.01 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of such series pursuant to subsection (b) of this Section and which
Securities are to be delivered and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments (in the currency or
currency unit described above) therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate (or to deliver the Securities and Coupons,
if any, specified in such certificate within the time period specified in
subsection (b) of this Section), the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash (in the currency or currency unit described above) and shall be sufficient
to redeem the principal amount of the Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit
Securities as provided in subsection (b) of this Section and without the right
to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash (in the currency or currency unit described above) plus any unused balance
of any preceding sinking fund payments made with respect to the Securities of
any particular series shall be applied by the Trustee on the sinking fund
payment date on which such payment is made (or, if such payment is made before
a sinking fund payment date, on the sinking fund payment date following the
date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund
together with accrued interest, if any, to the applicable Redemption Date. Any
excess sinking fund moneys not so applied or allocated by the Trustee to the
redemption of Securities shall be added to the next sinking fund payment
received by the Trustee for such series and, together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions
of this subsection (c) of this Section 4.04. Any and all sinking fund moneys
with respect to the Securities of any particular series held by The Trustee on
the last sinking fund payment date with respect to Securities of such series
and not held for the payment or redemption of particular Securities of such
series shall be applied by the Trustee together with other moneys, if
necessary, to be deposited (or segregated) sufficient for the purpose, to the
payment of the principal of the Securities of such series at Maturity. The
Trustee shall not convert any currency or currency
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unit in which the Securities of such series are payable for the purposes of
such sinking fund application unless specifically requested to do so by the
Company, and any such conversion agreed to by the Trustee in response to such
request shall be for the account and at the expense of the Company and shall
not affect the Company's obligation to pay the Holders in the currency or
currency unit to which such Holders may be entitled.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the
last paragraph of Section 4.02 and the Company shall cause notice of the
redemption thereof to be given in the manner provided in Section 4.02 except
that the notice of redemption shall also state that the Securities are being
redeemed by operation of the sinking fund and whether the sinking fund payment
is mandatory or optional, or both, as the case may be. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 4.03.
On or before the opening of business on (but at least one Business Day
before, in the case of payments made in a currency or currency unit other than
Dollars) each sinking payment date, the Company shall pay to the Trustee in
cash (in the currency or currency unit described in the first paragraph of this
subsection 4.04(c)) a sum equal to the principal and any interest accrued to
the Redemption Date for Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest;
Compliance with Terms.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of, premium, if any, and interest on the
Securities of such series in accordance with the terms of the Securities of
such series of Securities, any Coupons appertaining thereto and this Indenture,
net of any taxes required to be withheld, and will duly comply with all the
other terms, agreements and conditions contained in, or made in this Indenture
for the benefit of, the Securities of such series. Each installment of interest
on the Registered Securities of any series may be paid by mailing checks for
such interest payable to or upon the written order of the Holders of Registered
Securities entitled thereto as they shall appear on the registry books of the
Company.
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The interest on Coupon Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. The interest,
if any, on any temporary Unregistered Security shall be paid, as to any
installment of interest evidenced by a Coupon attached thereto, if any, only
upon presentation and surrender of such Coupon, and, as to other installments
of interest, if any, only upon presentation of such Security for notation
thereon of the payment of such interest.
SECTION 5.02. Maintenance of Agency.
The Company and the Guarantor will maintain an office or agency in the
Borough of Manhattan, The City of New York, where Registered Securities may be
presented or surrendered for payment and for registration of transfer or
exchange and an agency where notices and demands to or upon the Company and the
Guarantor in respect of the Securities, the Guarantees and this Indenture may
be served. The Company and the Guarantor hereby respectively appoint the
Trustee its initial office or agency for the purpose of this Section 5.02. So
long as any Coupon Securities or Unregistered Securities of any series remain
Outstanding, the Company will (except as specified pursuant to Section 3.01 or
Section 9.01(6)) maintain one or more offices or agencies outside the United
States in such city or cities as may be specified elsewhere in this Indenture
or as contemplated by Section 3.01, with respect to such series, where Coupons
appertaining to Securities of such series or Unregistered Securities of such
series may be surrendered or presented for payment, or surrendered for exchange
pursuant to Section 3.05 and where notices and demands to or upon the Company
or the Guarantor in respect of Coupons appertaining to Securities of such
series or the Unregistered Securities of such series or of this Indenture may
be served. The company and the Guarantor will give prompt written notice to
the Trustee of any change in the location of any such office or agency. If at
any time the Company or the Guarantor shall fail to maintain such agency or
shall fail to furnish the Trustee with the address thereof, presentations,
surrenders, notices and demands in respect of Registered Securities may be
made or served at the Principal Corporate Trust Office, and presentations,
surrenders, notices and demands in respect of Coupons appertaining to
Securities of any series and Unregistered Securities may be made or served at
the Principal Corporate Trust Office in the other city or cities referred to
above, if any; and the Company and the Guarantor hereby appoint the Trustee
their agent to receive all such presentations, surrenders, notices and demands.
The Company and the Guarantor agree to appoint and continue to maintain the
appointment of a Dollar Determination Agent, if necessary, to perform the
functions set forth herein for the Dollar Determination Agent.
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The Company and the Guarantor, by written notice to the Trustee, may
also from time to time designate one or more other offices or agencies where
Securities may be presented for any or all such purposes, and, by like notice,
may from time to time rescind such designations.
SECTION 5.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of such series, and the
Coupons, if any, appertaining thereto, set aside, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of,
premium, if any, or interest on any Securities of such series, and Coupons, if
any, appertaining thereto, deposit, subject to Section 4.04(c), with a Paying
Agent a sum sufficient to pay the principal, premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent 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 and the Company, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of or
premium, if any, or any interest on Securities of such series or any
Coupon appertaining thereto in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to said Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company or
the Guarantor (or any other obligor upon the Securities of such series)
in the making of any payment of principal of, premium or interest on
the Securities of such series or Coupon, if any, appertaining thereto;
and
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(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 trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
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 or premium, if
any, or interest on any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for 2 years after such principal 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 Coupon, if any, appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company and the
Guarantor 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 the Place of Payment, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company. The Trustee may also adopt and employ, at the
expense of the Company, any other reasonable means of notification of such
proposed repayment (including, but not limited to, mailing notice of such
proposed repayment to Registered Holders whose names appear on the Security
Register and whose holdings of Registered Securities have not yet been
surrendered for redemption or whose right to interest moneys due and payable
but not claimed is determinable from the records of any Paying Agent or the
Trustee, at the last address of record for each such Holder).
SECTION 5.04. Certification of Compliance of the Company
and the Guarantor.
Each of the Company and the Guarantor will promptly (and in any event
within 3 Business Days) notify the Trustee, upon
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obtaining knowledge of any default under this Indenture and shall comply with
the provisions of Section 314(a)(4) of the Trust Indenture Act.
SECTION 5.05. Corporate Existence.
Subject to Article Ten, the Company and the Guarantor will do or cause
to be done all things necessary to preserve and keep in full force and effect
their respective corporate existence, rights (charter and statutory) and
franchises and the corporate existence, rights (charter and statutory) and
franchises of all Subsidiaries other than the Company; provided, however, that
the Company and the Guarantor shall not be required to, or to cause any such
Subsidiary to, preserve any right or franchise or to keep in full force and
effect the corporate existence of any such Subsidiary if the Company (in the
case of the Company) or the Guarantor (in all other cases) shall determine that
the keeping in existence or preservation thereof is no longer desirable in the
conduct of the business of the Company or the Guarantor, as the case may be,
and that the loss thereof is not disadvantageous in any material respect to the
Holders of Securities or Coupons, if any, appertaining thereto.
SECTION 5.06. Limitation on Sale or Issuance of Voting
Shares of Principal Subsidiary Banks.
The Guarantor will not (a) permit the issue, sale or other disposition
of any Voting Shares, or securities convertible into, or options, warrants or
rights to subscribe for or purchase Voting Shares, of any Principal Subsidiary
Bank, (b) permit the merger of consolidation of any Principal Subsidiary Bank
with or into any other corporation, or (c) permit the sale or other disposition
of all or substantially all of the assets of any Principal Subsidiary Bank, if,
after giving effect to any such transaction (specified in clauses (a), (b) or
(c) above) and the issuance of the maximum number of Voting Shares issuable
upon the conversion or exercise of all such convertible securities, options,
warrants or rights, the Guarantor would own, directly or indirectly, less than
80% of the Voting Shares of such Principal Subsidiary Bank (and of any other
Principal Subsidiary Bank any Voting Shares of which are owned, directly or
indirectly, by such Principal Subsidiary Bank); provided, however, that the
foregoing shall not prohibit any such issuance, sale or disposition of shares
or securities, any such merger or consolidation or any such sale or disposition
of assets if:
(i) required by any law or any regulation or order of any
governmental authority;
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(ii) required as a condition imposed by any law or any
regulation or order of any governmental authority to the acquisition by
the Guarantor, directly or indirectly, of any other corporation or
entity, if thereafter, (x) the Guarantor would own, directly or
indirectly, at least 80% of the Voting Shares of such other corporation
or entity, and (y) the Consolidated Banking Assets of the Guarantor
would be at least equal to the Consolidated Banking Assets of the
Guarantor prior thereto, and (z) by a Board Resolution, such other
corporation or entity shall have been designated a Principal Subsidiary
Bank for all purposes or this Indenture;
(iii) upon consummation of such transaction, the Guarantor
owns, directly or indirectly, not less than the percentage of Voting
Shares of such Principal Subsidiary Bank (and of any other Principal
Subsidiary Bank any Voting Shares of which are owned, directly or
indirectly, by such Principal Subsidiary Bank) it owned prior to such
transaction; or
(iv) the proceeds of any such issuance, sale or other
disposition are invested within 180 days after such issuance, sale or
other disposition in any one or more Subsidiary Banks (including any
previously existing Subsidiary Bank or any other corporation which upon
such investment becomes a Subsidiary Bank), or if within 180 days after
such issuance, sale or other disposition the Guarantor has entered into
an agreement to invest such proceeds in any one or more Subsidiary
Banks (including any previously existing Subsidiary Bank or any other
corporation which upon such investment would become a Subsidiary Bank),
but such investment has not been made because all regulatory or other
approvals have not been obtained but are in the process of being
obtained, and if, in each case, the consolidated assets of the
Subsidiary Bank(s) acquired or to be acquired or invested in (including
any one or more corporations which upon such investment would become
Subsidiary Banks) would be at least equal to 80% of the consolidated
assets of the Principal Subsidiary Bank being disposed of; provided,
however, that if the Guarantor makes a subsequent acquisition as
described in this paragraph using its common stock and preferred stock,
with a fair market value at least equal to the proceeds of any sale,
assignment, transfer or disposition of a Principal Subsidiary Bank, it
will not also be required to invest the proceeds of any sale
assignment, transfer or disposition as otherwise required by this
paragraph; provided, further, that the Guarantor will, for the purpose
of satisfying this covenant, only issue preferred shares in a
subsequent acquisition in an amount needed to replace any preferred
stock of the acquired company;
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provided, however, that nothing herein shall be deemed to restrict or
prohibit the merger of a Principal Subsidiary Bank with and into a
Principal Subsidiary Bank or the Guarantor, the consolidation of
Principal Subsidiary Banks into a Principal Subsidiary Bank or the
Guarantor, or the sale or other disposition or all or substantially all
of the assets of any Principal Subsidiary Bank to another Principal
Subsidiary Bank or the Guarantor, if, in any such case in which the
surviving, resulting or acquiring entity is not the Guarantor, the
Guarantor would own, directly or indirectly, at least 80% of the Voting
Shares of the Principal Subsidiary Bank (and of any other Principal
Subsidiary Bank any Voting Shares of which are owned, directly or
indirectly, by such Principal Subsidiary Bank) surviving such merger,
resulting from such consolidation or acquiring such assets.
SECTION 5.07. Ownership of the Company.
Subject to Article Ten, the Guarantor will at all times continue to
own, directly or indirectly, all of the issued and outstanding Voting Shares of
the Company.
SECTION 5.08. Liens.
The Guarantor will not, and it will not permit any Subsidiary to,
pledge, mortgage or hypothecate or permit to exist any pledge, mortgage or
hypothecation or other lien upon Voting Shares of any Principal Subsidiary Bank
owned by the Guarantor or any Subsidiary to secure any indebtedness for
borrowed money without making effective provisions whereby any Senior Debt
Securities shall be equally and ratably secured with any and all such
indebtedness; provided, however, that this restriction shall not apply to or
prevent:
(a) the mortgage, pledge, or hypothecation of, or the
establishment of a lien on, any such Voting Shares to secure
indebtedness of the Guarantor or a Subsidiary as part of the purchase
price of such Voting Shares, or incurred prior to, at the time of or
within 120 days after acquisition thereof for the purpose of financing
all or any part of the purchase price thereof;
(b) the acquisition by the Guarantor or any Subsidiary of any
Voting Shares subject to mortgages, pledges, hypothecations or other
liens existing thereon at the time of acquisition (whether or not the
obligations secured thereby are assumed by the Guarantor or such
Subsidiary);
(c) the assumption by the Guarantor or a Subsidiary of
obligations secured by mortgages on, pledge or hypothecations of, or
other liens on, any such Voting Shares, existing at the time of the
acquisition by the Guarantor or such Subsidiary of such Voting Shares;
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(d) the extension, renewal or refunding (or successive
extensions, renewals or refundings), in whole or in part, of any
mortgage, pledge, hypothecation or other lien referred to in the
foregoing clauses (a), (b) and (c); provided, however, that the
principal amount of any and all other obligations and indebtedness
secured thereby shall not exceed the principal amount so secured at the
time of such extension, renewal or refunding, and that such extension,
renewal or refunding shall be limited to all or a part of the Voting
Shares that were subject to the mortgage, pledge, hypothecation or
other lien so extended, renewed or refunded; or
(e) liens to secure loans or other extensions of credit by a
Subsidiary Bank subject to Section 23A of the Federal Reserve Act or
any successor or similar federal law or regulations promulgated
thereunder;
and provided, further, that, notwithstanding the foregoing, the Guarantor may
incur or permit to be incurred or to exist upon such Voting Shares (a) liens
for taxes, assessments or other governmental charges or levies which are not
yet due or are payable without penalty or of which the amount, applicability or
validity is being contested by the Guarantor or a Subsidiary in good faith by
appropriate proceedings and the Guarantor or such Subsidiary shall have set
aside on its books adequate reserves with respect thereto (segregated to the
extent required by generally accepted accounting principles), or (b) the lien
of any judgment, if such judgment shall not have remained undischarged, or
unstayed on appeal or otherwise, for more than 60 days.
In case the Guarantor or any Subsidiary shall propose to pledge,
mortgage or hypothecate any voting Shares at any time owned by it to secure any
indebtedness, other than as permitted by subdivisions (a) to (e), inclusive, of
this Section, the Guarantor 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 Senior Debt Securities equally
and ratably with such indebtedness, by pledge, mortgage or hypothecation of
such Voting Shares. 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 Act, and may also contain such additional and
amendatory provisions permitted by said Act as the Guarantor and the Trustee
shall deem advisable or appropriate or as the Trustee shall deem necessary in
connection with such pledge, mortgage or hypothecation.
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SECTION 5.09. Waiver of Covenants.
The Company or the Guarantor, as the case may be, may omit in respect
of any series of Securities in any particular instance to comply with any
covenant or condition set forth in Section 5.05 through 5.08 hereof, if before
or after the time for such compliance the Holders of a majority in principal
amount of the Securities of such series at the time Outstanding shall, by Act
of such Holders of Securities, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and
effect.
ARTICLE SIX
SECURITY HOLDERS' LISTS AND REPORTS BY TRUSTEE,
COMPANY AND GUARANTOR
SECTION 6.01. Company and Guarantor To Furnish Trustee Names
and Addresses of Security Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company and the Guarantor will furnish or cause to be furnished to the Trustee
(a) semiannually and not more than 10 days after the Regular Record Date for
each series, 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 date, and on dates to be determined pursuant to Section 3.01 for
noninterest bearing Securities of such series in each year, and (b) at such
other times as the Trustee may request in writing, within 30 days after receipt
by the Company or the Guarantor 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, except that, so long as the Trustee is Security Registrar, no such
list need be furnished.
The Company and the Guarantor shall also be required to furnish such
information which is known to it concerning the Holders of Coupons and
Unregistered Securities; provided, however, that the Company and the Guarantor
shall have no obligation to investigate any matter relating to the name and
address of any Holder of an Unregistered Security or any Holder of a Coupon.
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SECTION 6.02. Preservation of Information; Communications to
Security Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of The Trust Indenture Act, subject to the exculpation from
liability contained in Section 312(c) of such Act.
SECTION 6.03. Reports by Trustee.
The Trustee shall comply with the provisions of Section 313 of the
Trust Indenture Act.
SECTION 6.04. Reports by Company and Guarantor.
The Company or the Guarantor shall Comply with the provisions of
Section 314(a)(1)(2) and (3) of the Trust Indenture Act.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default and Defaults.
(a) "Event of Default", with respect to any Senior Debt Securities,
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body) unless such event is either inapplicable to a particular
series or is specifically deleted or modified in the applicable Board
Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated by Section 3.01:
(1) default in the payment of any interest upon any Security of
such series when such interest becomes due and payable, and continuance
of such default for a period of 30 days;
(2) default in the payment of the principal of (including any
sinking fund payment or analogous obligation) or premium, if any, on
any Security of such series as and when the same shall become due and
payable either at Maturity, upon redemption, by declaration or
otherwise;
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(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in respect of the Securities
of such series (other than a covenant or warranty a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given to the
Company and the Guarantor by the Trustee, by registered or certified
mail, or to the Company, the Guarantor 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 default or breach and
requiring it to be remedied;
(4) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company, the
Guarantor or any Principal Subsidiary Bank under Title 11 of the United
States Code, as now constituted or as hereafter amended, or any other
applicable Federal or State bankruptcy law or other similar law, or
appointing a receiver, trustee or other similar official of the
Company, the Guarantor or any principal Subsidiary Bank or of any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days;
(5) the filing by the Company, the Guarantor or any Principal
Subsidiary Bank of a petition or answer or consent seeking relief under
Title 11 of the United States Code, as now constituted or as
hereinafter amended, or any other applicable Federal or State
bankruptcy law or other similar law, or the consent by it to the
institution of proceedings thereunder or to the filing of any such
petition or to the appointment or taking possession of a receiver,
trustee, custodian or other similar official of the Company, the
Guarantor or any Principal Subsidiary Bank or of any substantial part
of its property, or the Company, the Guarantor or any Principal
Subsidiary Bank shall fail generally to pay its debts as such debts
become due or shall take any corporate action in furtherance of any
such action; or
(6) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series.
(b) "Event of Default," with respect to any Subordinated Debt
Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default
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and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body) unless such
event is either inapplicable to a particular series or is specifically deleted
or modified in the applicable Board Resolution or in the supplemental indenture
under which such series of Securities is issued, as the case may be, as
contemplated by Section 3.01:
(1) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company, the
Guarantor or any Principal Subsidiary Bank under Title 11 of the United
States Code, as now constituted or as hereafter amended, or any other
applicable Federal or State bankruptcy law or other similar law, or
appointing a receiver, trustee or other similar official of the
Company, the Guarantor or any principal Subsidiary Bank or of any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days;
(2) the filing by the Company, the Guarantor or any Principal
Subsidiary Bank of a petition or answer or consent seeking relief under
Title 11 of the United States Code, as now constituted or as
hereinafter amended, or any other applicable Federal or State
bankruptcy law or other similar law, or the consent by it to the
institution of proceedings thereunder or to the filing of any such
petition or to the appointment or taking possession of a receiver,
trustee, custodian or other similar official of the Company, the
Guarantor or any Principal Subsidiary Bank or of any substantial part
of its property, or the Company, the Guarantor or any Principal
Subsidiary Bank shall fail generally to pay its debts as such debts
become due or shall take any corporate action in furtherance of any
such action; or
(3) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series .
(c) "Default" with respect to any Subordinated Debt Securities,
wherever used herein, means any one of the following events (whatever the
reason for such Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) unless such Default is either inapplicable to a particular
series or is specifically deleted or modified in the applicable
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Board Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated by Section 3.01:
(1) default in the payment of any interest upon any Security of
such series when such interest becomes due and payable, and continuance
of such default for a period of 30 days;
(2) default in the payment of the principal of (including any
sinking fund payment or analogous obligation) or premium, if any, on
any Security of such series as and when the same shall become due and
payable either at Maturity, upon redemption, by declaration or
otherwise;
(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in respect of the Securities
of such series (other than a covenant or warranty a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given to the
Company and the Guarantor by the Trustee, by registered or certified
mail, or to the Company, the Guarantor 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 default or breach and
requiring it to be remedied; or
(4) any other Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of
Security for such series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities occurs
and is continuing, then and in every such case the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Securities Outstanding
of such series may declare the principal (or, if Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of the Securities of such series) of all the
Securities of such series to be due and payable immediately, by a notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Holders of Securities), and upon any such declaration the same shall become
immediately due and payable.
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At any tine after such a declaration of acceleration with respect to
any series of Securities has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay in the currency or currency unit in
which the Securities of such series are payable (except as otherwise
specifically contemplated by Section 3.01 for the Securities of such
series and except as provided in Sections 3.11(b), 3.11(e) and 3.11(f)
of this Indenture)
(A) all overdue installments of interest on all Securities of
such series,
(B) (in the currency or currency unit described above) the
principal of (and premium, if any, on) any Securities of such series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series, and
(D) in Dollars all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, except as a result of
negligence or bad faith; and
(2) all Events of Default or Defaults, other than the
nonpayment of the principal of Securities of such series which have
become due solely by such acceleration, have been cured or waived as
provided in Section 7.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the
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Guarantor and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any
Security of any series when such interest becomes due and payable, and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(including any sinking fund payment or analogous obligation) or
premium, if any, on any Security of any series, whether upon Maturity
or upon any redemption or by declaration or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Securities of such series, and Coupons, if any, appertaining
thereto, the whole amount then due and payable on Securities of such series and
matured Coupons, if any, appertaining thereto for principal, premium, if any,
and interest, with interest upon the overdue principal and premium, if any, and
to the extent that payment of such interest is lawful, upon overdue
installments of interest, at the rate or rates prescribed therefor by the terms
of the Securities of such series; 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.
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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, the Guarantor or any other obligor upon such Securities
and Coupons and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or any
other obligor upon such Securities and Coupons, wherever situated.
If an Event of Default or a Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor or any other obligor
upon the Securities and Coupons, if any, appertaining thereto or the property
of the Company, the Guarantor or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities and any
amounts owed pursuant to Coupons, if any, appertaining thereto 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
or the Guarantor for payment of overdue principal, premium or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
any Securities and Coupons, if any, appertaining thereto and to file
such other papers or documents as may be necessary or advisable in
order to have the claim of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities of
any series and Coupons, if any, appertaining thereto allowed in such
judicial proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder
of Securities or Coupons, if any, appertaining thereto to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Security Holders, to pay to the Trustee any
amount due to it for the reasonable compensation expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 8.07. To the extent that such payment of reasonable
compensation, expenses, disbursements, advances and other amounts out of the
estate in any such proceedings shall be denied for any reason, payment of the
same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, moneys, securities and other property which the
Holders of the Securities or Coupons may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
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
Securities or Coupons, if any, appertaining thereto any plan of reorganization,
arrangement, adjustment or composition affecting the Securities and Coupons, if
any, appertaining thereto or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of Securities or
Coupons, if any, appertaining thereto in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or under the
Securities of any series or Coupons, if any, appertaining thereto may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or Coupons, if any, appertaining thereto or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities or Coupons in respect of which such judgment has been
recovered.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this
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Indenture to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Securities and Coupons in respect of which
such action was taken, and it shall not be necessary to make any Holders of
such Securities or Coupons parties to any such proceedings.
SECTION 7.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with
respect to a series of Securities or Coupons, if any, appertaining thereto
(other than sums held in trust for the benefit of the Holders of particular
Securities or Coupons) shall be applied in the following order, at the date or
dates fixed by the Trustee and in the case of the distribution of such money on
account of principal, premium, if any, or interest, upon presentation (except
in respect of Subdivision FIRST below) of the Securities of such series and
Coupons, if any, appertaining thereto, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.07.
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of such series and Coupons, if any, appertaining thereto
for principal, premium, if any, and interest, in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities of such series and Coupons, if any,
appertaining thereto, for principal, premium, if any, and interest,
respectively.
THIRD: The balance, to the Person or Persons lawfully entitled
thereto, or as a court of competent jurisdiction may direct.
SECTION 7.07. Limitation on Suits.
No Holder of any security of any series or Coupon, if any, appertaining
thereto 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 continued Event of Default or a Default with respect to
Securities of such series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default or Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceedings; 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 Holders of Securities of
such series or Coupons, if any, appertaining thereto shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb, or prejudice the rights of any other Holders of
Securities of such series or Coupons, if any, appertaining thereto or to obtain
or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of Securities of such
series and Coupons, if any, appertaining thereto.
SECTION 7.08. Unconditional Right of Security Holders To
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon, if any, appertaining thereto shall have the right which
is absolute and unconditional to receive payment of the principal of and
premium, if any, and (subject to Section 3.07) interest on such Security or a
Coupon on the respective Stated Maturities expressed in such Security or Coupon
(or, in the case of redemption or repayment, on the Redemption Date or
Repayment Date, as the case may be) at the respective places, at the respective
times, at the respective rates, in the respective amounts and in the coin,
currency, or currency unit therein and herein prescribed, and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
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SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or Coupon, if any,
appertaining thereto 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 of any Security or Coupon, if any, appertaining thereto, then and
in every such case the Company, the Guarantor, the Trustee and the Holders of
any Security or Coupons, if any, appertaining thereto shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders of any Securities or Coupons, if any, appertaining thereto is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon, if any, appertaining thereto to exercise any right or remedy accruing
upon any Event of Default or any Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders of any Security or Coupon, if any, appertaining
thereto may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by such Holders, as the case may be.
SECTION 7.12. Control by Security 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
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power conferred on the Trustee under this Indenture with respect
to Securities of such series, provided that
(1) such direction shall not be in conflict with any statute or
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) the Trustee need not take any action which it determines
might involve it in personal liability or would be unduly prejudicial
to the Holders of Securities of such series not joining in such
direction.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of or premium, if any, or
interest on any Security of such series or Coupon, if any, appertaining
thereto, or in the payment of any sinking fund installment or analogous
obligation with respect to Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default or Default arising therefrom shall be deemed to have been cured, for
every purpose in respect of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
SECTION 7.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
Coupon, if any, appertaining thereto by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
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of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder of
any Security, or group of Holders of any Security, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or Coupons, if any,
appertaining thereto for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security or Coupon, if any, appertaining
thereto on or after the respective Stated Maturities expressed in such Security
or Coupon (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be).
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company and the Guarantor covenant (to the extent that they may
lawfully do so) that they 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 any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
the Guarantor (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenant that they 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.
SECTION 7.16. Judgment Currency.
If for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company or the Guarantor hereunder or under any Security
or Coupon it shall become necessary to convert into any other currency or
currency unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made at the
Conversion Rate as in effect on the date the Company or the Guarantor shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment
is made and there shall occur a change between such Conversion Rate and the
Conversion Rate as in effect on the date of payment, the Company and the
Guarantor agree to pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is the amount in such other currency or currency
unit which, when converted at the
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Conversion Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Security or Coupon. Any amount due from
the Company or the Guarantor under this Section 7.16 shall be due as a separate
debt and is not to be affected by or merged into any judgment being obtained
for any other sums due hereunder or in respect of any Security or Coupon. In no
event, however, shall the Company or the Guarantor be required to pay more in
the currency or currency unit due hereunder or under such Security or Coupon at
the Conversion Rate as in effect when payment is made than the amount of
currency or currency unit stated to be due hereunder or under such Security or
Coupon so that in any event the Company's and the Guarantor's obligations
hereunder or under such Security or Coupon will be effectively maintained as
obligations in such currency or currency unit.
For purposes of this Section 7.16, "Conversion Rate" shall mean the
spot rate at which in accordance with normal banking procedures the currency or
currency unit into which an amount due hereunder or under any Security or
Coupon is to be converted could be purchased with the currency or currency unit
due hereunder or under any Security or Coupon from major banks located in New
York, London or any other principal market for such purchased currency or
currency unit.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.
(a) The Trustee shall comply with, and be subject to, the provisions of
Section 315 of the Trust Indenture Act.
(b) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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SECTION 8.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to any series of Securities, 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 the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of or premium, if any, or interest on any
Security of such series, or in the payment of any sinking fund installment or
analogous obligation with respect to the 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 of
such series and any Coupons appertaining thereto; and provided, further, that
in the case of any default of the character specified in Section 7.01(3) no
such notice to Holders of Securities of such series 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 or a Default.
SECTION 8.03. Certain Rights of Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order or a Guarantor Request or a Guarantor Order and any
resolution of a Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking 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 and an
Opinion of Counsel;
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(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken 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 or Coupons, if any,
appertaining thereto pursuant to this Indenture, unless such Holders of
Securities or Coupons, if any, appertaining thereto 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 and the Guarantor, personally or by agent or attorney;
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance
of Securities and Guarantees.
The recitals contained herein and in the Securities and Guarantees,
except the certificates of authentication, shall be taken as the statement of
the Company or the Guarantor, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities or
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Coupons, if any, appertaining thereto or the Guarantees. The Trustee shall not
be accountable for the use or application by the Company or the Guarantor of
Securities or the proceeds thereof.
SECTION 8.05. May Hold Securities.
The Trustee, any Paying Agent, Securities Registrar, or any other agent
of the Company or the Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons and, subject to Sections
8.08 and 8.13, may otherwise deal with the Company and the Guarantor with the
same rights it would have if it were not Trustee, Paying Agent, Securities
Registrar or such other agent.
SECTION 8.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor.
SECTION 8.07. Compensation and Reimbursement.
The Company and the Guarantor jointly and severally agree:
(1) to pay to the Trustee from time to time in Dollars
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee in Dollars upon its request for
all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with
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the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company and
the Guarantor under this Section the Trustee shall have a lien prior to the
Securities and Coupons, if any, appertaining thereto and Guarantees 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 or interest on particular
Securities and Coupons, if any, appertaining thereto.
SECTION 8.08. Qualification of Trustee; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series other than that
series. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 8.09. Persons Eligible for Appointment as Trustee.
There shall at all times be a Trustee for each series of Securities
hereunder which shall at all times be either
(i) a corporation organized and doing business under the laws
of the United States of America or of any State or the District of
Columbia which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority; or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees'
in either case having a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition
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at least annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company, the Guarantor, nor any person
directly or indirectly controlling, controlled by, or under common control with
the Company or the Guarantor shall serve as trustee for the Securities of any
series issued hereunder. In case at any time the Trustee for the Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.10.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any
series and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
under Section 8.11.
(b) The Trustee may resign with respect to one or more series at any
time by giving written notice thereof to the Company and the Guarantor. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities
at any time by Act of the Holders of a majority in principal amount of the
outstanding Securities of such series delivered to the Trustee and to the
Company and the Guarantor.
(d) It at any time
(1) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by
the Company or the Guarantor or by any Security Holder who has been a
bona fide Holder of a Security of such series for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or the Guarantor or by any such
Security Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a
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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 or the Guarantor, by a Board
Resolution, may remove the Trustee with respect to such series or (ii) subject
to Section 7.14, 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 removal of the Trustee and the appointment of a successor Trustee with
respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company or the Guarantor, by a Board Resolution, shall promptly appoint a
successor Trustee with respect to such series of Securities. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company, the Guarantor
and the retiring Trustee with respect to such series, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to such series and supersede the successor
Trustee appointed by the Company or the Guarantor. If no successor Trustee with
respect to such series shall have been so appointed by the Company, the
Guarantor or the Holders of Securities of such series and have accepted
appointment in the manner hereinafter provided, any Security Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(f) The Company or the Guarantor shall give notice of each resignation
and each removal of the Trustee with respect to any series and each appointment
of a successor Trustee with respect to any series, in the manner specified in
Section 1.06, to the Holders of Securities, and Coupons, if any, appertaining
thereto, of such series. Each notice shall include the name of the successor
Trustee and the address of its Principal Corporate Trust Office.
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SECTION 8.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company, the Guarantor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective with respect to all series as to
which it is thereby resigning as Trustee and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the resigning Trustee with respect to all or any
such series; but, on request of the Company, the Guarantor or such successor
Trustee, such resigning Trustee shall, upon payment of its outstanding charges
and expenses, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee with respect
to all or any such series, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 8.07. Upon request of any such successor
Trustee, the Company and the Guarantor 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.
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
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of any applicable series may execute and deliver an indenture
supplemental hereto containing 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 any series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and adding to or changing 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 any such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
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SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.
Any corporation into which the Trustee for the Securities of any series
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.
SECTION 8.13. Preferential Collection of Claims
Against Company and Guarantor.
The Trustee shall comply with the requirements of Section 311 of the
Trust Indenture Act and any rules or regulations promulgated by the Commission
thereunder.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without
Consent of Security Holders.
Without the consent of the Holders of any Securities, the Company and
the Guarantor, when authorized by a Board Resolution, and the Trustee for the
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the Guarantor, and the assumption by any such successor of
the covenants and obligations of the Company or the Guarantor herein
and in the Securities or the Guarantees contained;
(2) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities
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and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to Section
8.11;
(3) to add to the covenants and agreements of the Company or
the Guarantor for the benefit of the Holders of all or any series of
Securities and the Coupons, if any, appertaining thereto (if such
covenants are for less than all series, stating that such covenants are
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company or the Guarantor provided that such
action shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding and the Holders of the
Coupons, if any, appertaining thereto;
(4) 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 provided such other
provisions shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding and Coupons, if any,
appertaining thereto;
(5) to secure the Securities in accordance with the provisions
of Section 5.08;
(6) to establish any additional form of Security, as permitted
by Section 2.03, and to provide for the issuance of any additional
series of Securities and Coupons, if any, appertaining thereto as
permitted by Section 3.01, and to set forth the terms thereof;
(7) to permit payment in the United States of principal,
premium or interest on Unregistered Securities or of interest on Coupon
Securities; or
(8) to provide for the issuance of uncertificated Securities of
one or more series in the place of certificated Securities.
The Trustee with respect to any series of Securities affected by such
supplemental indenture is hereby authorized to join with the Company and the
Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the
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Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. Supplemental Indentures with
Consent of Security Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series (voting as one
class) affected by such supplemental indenture or indentures, by Act of said
Holders delivered to the Company, the Guarantor and the Trustee, the Company
and the Guarantor, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of each 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,
(1) change the Maturity of the principal of, or the Stated
Maturity of, or any installment of interest on, any Security, or reduce
the principal amount thereof (including in the case of an Original
Issue Discount Security the amount payable upon acceleration of the
Maturity thereof) or any premium thereon or the rate of interest
thereon, or change the method of computing the amount of principal
thereof on any date, or eliminate a Place of Payment where, or the coin
or currency in which, any Security or any premium thereon or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Maturity or the
Stated Maturity, as the case may be, thereof (or, in the case of
redemption or a repayment, on or after the Redemption Date or the
Repayment Date, as the case may be);
(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;
(3) modify any of the provisions of this Section, Section 5.09
or Section 7.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby; or
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(4) modify or affect in any manner adverse to the Holders of
the Securities the terms and conditions of the obligation of the
Guarantor in respect of the due and punctual payment of the principal
of or premium or interest on the Securities.
It shall not be necessary for any Act of Security Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution and
delivery of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be and be deemed to be
modified and amended in accordance therewith, but only with regard to the
Securities of each series affected by such supplemental indenture, and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee for the Securities of such series, the
Company, the Guarantor and the Holders of any Securities of such series or any
Coupons appertaining thereto affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes with regard to the Securities of such series
and Coupons, if any, appertaining thereto.
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SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series (including any Coupons appertaining thereto)
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Guarantor shall so determine, new
Securities of any series and any Coupons appertaining thereto so modified as to
conform, in the opinion of the Trustee or the Boards of Directors of the
Company and the Guarantor, to any such supplemental indenture may be prepared
and executed by the Company, with duly executed Guarantees endorsed thereon,
and authenticated and delivered by the Trustee in exchange for the Securities
of such series and any Coupons appertaining thereto then Outstanding.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety, to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest on all the Securities of each series and
the Coupons, if any, appertaining thereto and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
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(2) immediately after giving effect to such transaction, no
Event of Default or Default, and no event which, after notice or lapse
of time or both, would become an Event of Default or a Default, shall
have happened and be continuing;
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with; and
(4) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the Guarantees
remain in full force and effect.
SECTION 10.02. Successor Corporation Substituted for Company.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
In the event of any such conveyance or transfer, the Person named as
the "Company" in the first paragraph of this instrument or any successor which
shall theretofore have become such in the manner prescribed in this Article may
be dissolved, wound-up and liquidated at any time thereafter, and such Person
thereafter shall be released from its liabilities as obligor and maker of all
the securities and from its obligations under this Indenture.
SECTION 10.03. Guarantor May Consolidate, etc.,
Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Guarantor is merged or the Person which acquires by conveyance or
transfer the properties and
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assets of the Guarantor substantially as an entirety shall be a
corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual performance of the obligations of the Guarantor and the
performance of every covenant of this Indenture on the part of the
Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or Default, and no event which, after notice or lapse
of time or both, would become an Event of Default or a Default, shall
have happened and be continuing; and
(3) the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 10.04. Successor Corporation Substituted for Guarantor.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Guarantor substantially as an entirety in
accordance with Section 10.03, the successor corporation formed by such
consolidation or into which the Guarantor is merged or to which such conveyance
or transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Guarantor under this Indenture with the same
effect as if such successor corporation had been named as the Guarantor herein.
In the event of any such conveyance or transfer, the Person named as
the Guarantor ion the first paragraph of this instrument or any successor which
shall theretofore have become such in the manner prescribed in this Article may
be dissolved, wound-up and liquidated at any time thereafter, and such Person
thereafter shall be released from its liabilities as Guarantor and from its
obligations under this Indenture.
SECTION 10.05. Company May Consolidate, etc. with
Guarantor, Only on Certain Terms.
The Company shall not consolidate with or merge into the Guarantor or
convey or transfer its properties and assets substantially as an entirety to
the Guarantor, unless:
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(1) the Guarantor shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual performance of the
obligations of the Company and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or Default, and no event which, after notice or lapse
of time or both, would become an Event of Default or a Default, shall
have happened and be continuing; and
(3) the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Satisfaction and Discharge of Securities of
Any Series.
Except as otherwise provided for the Securities of any series
established pursuant to Section 3.01(18), the Company and the Guarantor shall
be deemed to have satisfied and discharged the entire indebtedness on all the
Outstanding Securities of any particular series and the Coupons, if any,
appertaining thereto, and the Trustee, at the expense of the Company and the
Guarantor and upon Company Request, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) either
(A) all Outstanding Securities of such series theretofore
authenticated and delivered and the Coupons, if any, appertaining
thereto (other than (i) any Securities of such series or Coupons which
have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.06 and (ii) Outstanding Securities of
such series or Coupons 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
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Sections 5.03 and 11.04) have been delivered to the
Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
and the Coupons, if any, appertaining thereto, described in (A) above
not theretofore delivered to the Trustee for cancellation:
(i) the Company or the Guarantor has deposited or caused to
be deposited with the Trustee as trust funds in trust an amount
in the currency or currency unit in which the Securities of such
series are denominated (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) hereof)
sufficient to pay and discharge the entire indebtedness on all
such Outstanding Securities of such series for principal (and
premium, if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by Section 11.03, as the case
may be; or
(ii) the Company or the Guarantor has deposited or caused to
be deposited with the Trustee as obligations in trust such
amount of Government Obligations as will, in a written opinion
of independent public accountants delivered to the Trustee,
together with the predetermined and certain income to accrue
thereon (without consideration of any reinvestment thereof), be
sufficient to pay and discharge when due the entire indebtedness
on all such Outstanding Securities of such series and the
Coupons, if any, appertaining thereto, for unpaid principal (and
premium, if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by Section 11.03, as the case
may be;
(2) the Company or the Guarantor has paid or caused to be paid
all other sums payable with respect to the Outstanding Securities of
such series and the Coupons, if any, appertaining thereto;
(3) the Company or the Guarantor has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to due
satisfaction and discharge of the entire indebtedness on all
Outstanding Securities of any such series and the Coupons, if any,
appertaining thereto, have been complied with; and
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(4) if the Securities of such series and the Coupons, if any,
appertaining thereto, are not to become due and payable at their Stated
Maturity within one year of the date of such deposit or are not to be
called for redemption within one year of the date of such deposit under
arrangements satisfactory to the Trustee as of the date of such
deposit, then the Company and the Guarantor shall have given, not later
than the date of such deposit, notice of such deposit to the Holders of
the Securities of such series and the Coupons, if any, appertaining
thereto.
Upon the satisfaction of the conditions set forth in this Section 11.01
with respect to all the Outstanding Securities of any series and the Coupons,
if any, appertaining thereto, the terms and conditions of such series,
including the terms and conditions with respect thereto set forth in this
Indenture, shall no longer be binding upon, or applicable to, the Company or
the Guarantor, and the Holders of the Securities of such series shall look for
payment only to the funds or obligations deposited with the Trustee pursuant to
Section 11.01(1)(B); provided, however, that the Company and the Guarantor
shall not be discharged from (a) any payment obligations in respect of
Securities of such series which are deemed not to be Outstanding under clause
(c) of the definition thereof and the Coupons, if any, appertaining thereto, if
such obligations continue to be valid obligations of the Company and the
Guarantor under applicable law, (b) any obligations under Sections 8.07 and
8.10 and (c) any obligations under section 3.05 or 3.06 (except that Securities
of such series issued upon registration of transfer or exchange or Securities
or Coupons, if any, appertaining thereto issued in lieu of mutilated, lost,
destroyed or stolen Securities or Coupons shall not be obligations of the
Company or the Guarantor) and Section 6.01; and provided further that in the
event a petition for relief under the Bankruptcy Reform Act of 1978 or a
successor statute is filed with respect to the Company or the Guarantor within
91 days after the deposit, the entire indebtedness on all Securities of such
series and the Coupons, if any, appertaining thereto shall not be discharged,
and in such event the Trustee shall return such deposited funds or obligations
as it is then holding to the Company or the Guarantor upon Company Request or
Guarantor Request, as applicable; and provided further that if the Trustee or
Paying Agent is unable to apply any money in accordance with Section 11.03 by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations of the Company and the Guarantor under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 11.03, but if the
Company or the Guarantor makes any payment of interest on or principal of any
Security following the
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reinstatement of its obligations, the Company and the Guarantor shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent. Notwithstanding the
satisfaction of the conditions set forth in this Section 11.01 with respect to
all the Securities of any series not denominated in Dollars, upon the happening
of any event specified in Section 3.11(e) the Company and the Guarantor shall
be obligated to make the payments in Dollars required by Section 3.11(e) to the
extent that the Trustee is unable to convert any Foreign Currency or currency
unit in its possession pursuant to Section 11.01(1) (B) into the Dollar
Equivalent of the Foreign Currency or the Dollar Equivalent of the Currency
Unit, as the case may be. The Trustee shall return to the Company or the
Guarantor any non-converted funds or securities in its possession after such
payments have been made.
SECTION 11.02. Satisfaction and Discharge of Indenture.
Upon compliance by the Company and the Guarantor with the provisions of
Section 11.01 as to the satisfaction and discharge of each series of Securities
issued hereunder and the Coupons, if any, appertaining thereto, and if the
Company and the Guarantor have paid or caused to be paid all other sums payable
under this Indenture, this Indenture shall cease to be of any further effect
(except as otherwise provided herein). Upon Company Request and receipt of an
Opinion of Counsel, an Officers' Certificate and, if appropriate under the
circumstances, an opinion of independent public accountants (and at the expense
of the Company), the Trustee shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company or the Guarantor under Sections 3.05, 3.06, 6.01,
8.07 and 8.10, any obligations of the Company or the Guarantor under Section
3.11(d) to deliver an Exchange Rate Officer's Certificate and the obligations
of the Trustee under Section 11.03 shall survive.
SECTION 11.03. Application of Trust Money.
All money and obligations deposited with the Trustee pursuant to
Section 11.01 shall be held irrevocably in trust and shall be made under the
terms of an escrow trust agreement in form and substance satisfactory to the
Trustee. Such money and obligations shall be applied by the Trustee, in
accordance with the provisions of the Securities, this Indenture and such
escrow trust agreement, to the payment, either directly or through any Paying
Agent (including the Company or Guarantor acting as its own Paying Agent) as
the Trustee may determine, to the Persons
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entitled thereto, of the principal of (and premium, if any) and interest, if
any, on the Securities and the Coupons, if any, appertaining thereto for the
payment of which such money and obligations have been deposited with the
Trustee. If Securities of any series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provision or in
accordance with any mandatory sinking fund requirement, the Company or
Guarantor 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 or Guarantor.
SECTION 11.04. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series and the Coupons, if any, appertaining
thereto, all moneys with respect to such series then held by any Paying Agent
for such series under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Company or Guarantor, be repaid
to it or paid to the Trustee and thereupon such Paying Agent shall be released
from all further liability with respect to such moneys.
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Subordinated Debt Securities Subordinated
to Senior Company Indebtedness.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Subordinated Debt Securities and Coupons, if any,
appertaining thereto by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and interest on each and all of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior Company
Indebtedness.
SECTION 12.02. Payments upon Dissolution of the Company.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities
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of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture or any supplemental indenture issued pursuant to Section 3.01
upon the Senior Company Indebtedness and the holders thereof with respect to
the Subordinated Debt Securities and Coupons, if any, appertaining thereto and
the Holders thereof by a lawful plan of reorganization under applicable
bankruptcy law),
(i) the holders of all Senior Company Indebtedness shall first
be entitled to receive payment in full in accordance with the terms of
such Senior Company Indebtedness of the principal thereof, premium, if
any, and the interest due thereon (including interest accruing
subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the
Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto are entitled to receive any payment upon the
principal of or premium, if any, or interest on indebtedness evidenced
by the Subordinated Debt Securities and Coupons, if any, appertaining
thereto;
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto would be entitled except for the provisions
of this Article Twelve, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of
the Subordinated Debt Securities and Coupons, if any, appertaining
thereto, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Company Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Company
Indebtedness may have been issued, in accordance with the priorities
then existing among holders of Senior Company Indebtedness for payment
of the aggregate amounts remaining unpaid on account of the principal,
premium, if any, and interest (including interest accruing subsequent
to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) on the Senior
Company Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior
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Company Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Company Indebtedness; it being understood that if the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto
shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to 30 days
before the expiration of the time to file such claim or claims, then
the holders of Senior Company Indebtedness are hereby authorized to
file an appropriate claim or claims for and on behalf of the Holders of
the Subordinated Debt Securities and Coupons, if any, appertaining
thereto, in the form required in any such proceeding; and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinate to the payment of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto shall be received by the Trustee
or Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto before all Senior Company Indebtedness is paid in
full, such payment or distribution shall be paid over to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment of assets of the Company for all Senior
Company Indebtedness remaining unpaid until all such Senior Company
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Company Indebtedness.
Subject to the payment in full of all Senior Company Indebtedness, the Holders
of the Subordinated Debt Securities and Coupons, if any, appertaining thereto
shall be subrogated to the rights of the holders of Senior Company Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Company Indebtedness until the principal of
and premium, if any, and interest on the Subordinated Debt Securities and
Coupons, if any, appertaining thereto shall be paid in full and no such
payments or distributions to holders of such Senior Company Indebtedness to
which the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto would be entitled except for the provisions hereof of
cash, property or securities otherwise distributable to the Senior Company
Indebtedness shall, as between the Company, its creditors, other than the
holders of Senior Company Indebtedness, and the Holders of the Subordinated
Debt Securities and Coupons, if any, appertaining thereto, be deemed to be a
payment by the Company to
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or on account of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto. It is understood that the provisions of this Article
Twelve (other than Sections 12.04, 12.05 and 12.06) are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto, on the
one hand, and the holders of Senior Company Indebtedness, on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture, any
supplemental indenture issued pursuant to Section 3.01, or in the Subordinated
Debt Securities and Coupons, if any, appertaining thereto is intended to or
shall impair, as between the Company, its creditors, other than the holders of
Senior Company Indebtedness, and the Holders of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto the
principal of, premium, if any, and interest on the Subordinated Debt Securities
and Coupons, if any, appertaining thereto as and when the same shall become due
and payable in accordance with their terms or to affect the relative rights of
the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto and creditors of the Company, other than the holders of
the Senior Company Indebtedness, nor shall anything herein or in the
Subordinated Debt Securities and Coupons, if any, appertaining thereto prevent
the Trustee or the Holder of any Subordinated Debt Securities and Coupons, if
any, appertaining thereto from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture, subject to the rights, if
any, under this Article Twelve of the holders of Senior Company Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of assets of the
Company referred to in this Article Twelve, the Trustee and the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceeding
is pending or upon a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Company Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Twelve. In the absence of any such liquidating trustee, agent
or other person, the Trustee shall be entitled to rely upon a written notice by
a Person representing himself to be a holder of Senior Company Indebtedness (or
a trustee or representative on behalf of such holder) as evidence that such
Person is a holder of Senior Company
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Indebtedness (or is such a trustee or representative). In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person, as a holder of Senior Company Indebtedness,
to participate in any payment or distribution pursuant to this Article Twelve,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Company Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under this Article Twelve, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
The obligation of the Company in respect to the Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall rank on a parity
with any other obligations of the Company ranking on a parity with the
Subordinated Debt Securities, including the Company's 9-7/8% Subordinated Notes
Due 2001.
With respect to the holders of Senior Company Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Company Indebtedness shall be
read into this Article 12 against the Trustee; provided that nothing contained
herein shall derogate from covenants or obligations contained in this
Indenture, or any supplemental indenture issued pursuant to Section 3.01, with
respect to Senior Company Indebtedness that is issued as a series of Securities
under this Indenture. The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Company Indebtedness by reason of the
execution of this Indenture, or any supplemental indenture issued pursuant to
Section 3.01, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to or on behalf of Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto or the
Company moneys or assets to which any holders of Senior Company Indebtedness
shall be entitled by virtue of this Article Twelve.
SECTION 12.03. No Payment When Senior Company
Indebtedness in Default.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Company
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Company Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to
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hereinafter, permitting the holders of such Senior Company Indebtedness (or a
trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default shall have been cured
or waived or shall have ceased to exist, no payment or principal of or interest
on the Subordinated Debt Securities and Coupons, if any, appertaining thereto,
or in respect of any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto, shall
be made by the Company.
SECTION 12.04. Guarantees of Subordinated Debt Securities
Subordinated to Senior Guarantor Indebtedness.
The Guarantor, for itself, its successors and assigns, covenants and
agrees, and each Holder of Guarantees of Subordinated Debt Securities and
Coupons, if any, appertaining thereto by his acceptance thereof likewise
covenants and agrees, that the payment of the principal of and interest on each
and all of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto pursuant to the Guarantees thereof is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Guarantor Indebtedness.
SECTION 12.05. Payments upon Dissolution of the Guarantor.
Upon any distribution of assets of the Guarantor upon any dissolution,
winding up, liquidation or reorganization of the Guarantor, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Guarantor or otherwise (subject to the power of a court
of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture or any supplemental indenture issued
pursuant to Section 3.01 upon the Senior Guarantor Indebtedness and the holders
thereof with respect to the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto and the Holders thereof by a lawful plan
of reorganization under applicable bankruptcy law),
(i) the holders of all Senior Guarantor Indebtedness shall
first be entitled to receive payment in full in accordance with the
terms of such Senior Guarantor Indebtedness of the principal thereof,
premium, if any, and the interest due thereon (including interest
accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Guarantor under any applicable
bankruptcy, insolvency, or similar law now or
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hereafter in effect) before the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto
are entitled to receive any payment upon the principal of or premium,
if any, or interest on indebtedness evidenced by the Subordinated Debt
Securities and Coupons, if any, appertaining thereto pursuant to the
Guarantees thereof;
(ii) any payment or distribution of assets of the Guarantor of
any kind or character, whether in cash, property or securities, to
which the Holders of the Guarantees or the Subordinated Debt Securities
and Coupons, if any, appertaining thereto or the Trustee would be
entitled except for the provisions of this Article Twelve, including
any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Guarantor being
subordinated to the payment of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Guarantor Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Guarantor Indebtedness may have been
issued, in accordance with the priorities then existing among holders
of Senior Guarantor Indebtedness for payment of the aggregate amounts
remaining unpaid on account of the principal, premium, if any, and
interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company
under any applicable bankruptcy, insolvency, or similar law now or
hereafter in effect) on the Senior Guarantor Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Guarantor Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Guarantor Indebtedness; it being understood that if the Holders of the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall fail to file a proper claim in the form
required by any proceeding referred to in this subparagraph (ii) prior
to 30 days before the expiration of the time to file such claim or
claims, then the holders of Senior Guarantor Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of
the Holders of the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto, in the form required in any such
proceeding; and
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(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Guarantor of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Guarantor being
subordinate to the payment of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall be received
by the Trustee or Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto before all Senior
Guarantor Indebtedness is paid in full, such payment or distribution
shall be paid over to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment of
assets of the Guarantor for all Senior Guarantor Indebtedness remaining
unpaid until all such Senior Guarantor Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Guarantor Indebtedness.
Subject to the payment in full of all Senior Guarantor Indebtedness, the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto shall be subrogated to the rights of the holders of
Senior Guarantor Indebtedness to receive payments or distributions of cash,
property or securities of the Guarantor applicable to the Senior Guarantor
Indebtedness until the principal of and premium, if any, and interest on the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall be paid in full and no such payments or
distributions to holders of such Senior Guarantor Indebtedness to which the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto would be entitled except for the provisions hereof of
cash, property or securities otherwise distributable to the Senior Guarantor
Indebtedness shall, as between the Guarantor, its creditors, other than the
holders of Senior Guarantor Indebtedness, and the Holders of the Guarantees of
the Subordinated Debt Securities and Coupons, if-any, appertaining thereto, be
deemed to be a payment by the Guarantor to or on account of the Guarantees of
the Subordinated Debt Securities and Coupons, if any, appertaining thereto. It
is understood that the provisions or this Article Twelve (other than Sections
12.01, 12.02 and 12.03) are and are intended solely for the purpose of defining
the relative rights of the Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto, on the one hand, and the
holders of Senior Guarantor Indebtedness, on the other hand. Nothing contained
in this Article Twelve or elsewhere in this Indenture, any supplemental
indenture issued pursuant to Section 3.01, or in the Subordinated Debt
Securities and Coupons, if any, appertaining thereto or the
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Guarantees thereof is intended to or shall impair, as between the Guarantor,
its creditors, other than the holders of Senior Guarantor Indebtedness, and the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto the obligation of the Guarantor, which is
unconditional and absolute, to pay to the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto the
principal, premium, if any, and interest on the Subordinated Debt Securities
and Coupons, if any, appertaining thereto, pursuant to the Guarantees thereof,
as and when the same shall become due and payable in accordance with their
terms or to affect the relative rights of the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Guarantor, other than the holders of the Senior Guarantor
Indebtedness, nor shall anything herein or in the Subordinated Debt Securities
and Coupons, if any, appertaining thereto or the Guarantees thereof prevent the
Trustee or the Holder of any Guarantee of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of Senior Guarantor
Indebtedness in respect of cash, property or securities of the Guarantor
received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Guarantor referred to in this Article Twelve, the Trustee and
the Holders of the Guarantees of the Subordinated Debt Securities and Coupons,
if any, appertaining thereto shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceeding is pending or upon a certificate of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Guarantees of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders or the Senior
Guarantor Indebtedness and other indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve. In the absence
of any such liquidating trustee, agent or other person, the Trustee shall be
entitled to rely upon a written notice by a Person representing himself to be a
holder of Senior Guarantor Indebtedness (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder of Senior
Guarantor Indebtedness (or is such a trustee or representative). In the event
that the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person, as a holder of Senior Guarantor
Indebtedness, to participate in any payment or distribution pursuant to this
Article Twelve, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Guarantor
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Indebtedness held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article Twelve, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
The obligation of the Guarantor in respect to the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto shall
rank on a parity with the Guarantor's 8-1/4% Convertible Subordinated
Debentures Due 2008, the Guarantor's Floating Rate Subordinated Notes Due 1997,
the Citizens Fidelity Corporation Convertible Subordinated Debentures Due 2005,
and the Guarantor's Guarantee of the Company's 9-7/8% Subordinated Notes Due
2001 and any other obligations of the Guarantor ranking on a parity with the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto.
With respect to the holders of Senior Guarantor Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Guarantor
Indebtedness shall be read into this Article Twelve against the Trustee;
provided that nothing contained herein shall derogate from covenants or
obligations contained in this Indenture, or any supplemental indenture issued
pursuant to Section 3.01, with respect to Senior Guarantor Indebtedness that is
issued as a series of Securities under this Indenture. The Trustee, however,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Guarantor Indebtedness by reason of the execution of this Indenture, or any
supplemental indenture issued pursuant to Section 3.01, and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to or on
behalf of Holders of the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto or the Guarantor moneys or assets to
which any holders of Senior Guarantor Indebtedness shall be entitled by virtue
of this Article Twelve.
SECTION 12.06. No Payment When Senior Guarantor
Indebtedness in Default.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Guarantor
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Guarantor Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to
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hereinafter, permitted the holders of such Senior Guarantor Indebtedness (or a
trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default shall have been cured
or waived or shall have ceased to exist, no payment or principal of or interest
on the Subordinated Debt Securities and Coupons, if any, appertaining thereto,
or in respect of any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto,
pursuant to the Guarantees thereof, shall be made by the Guarantor.
SECTION 12.07. No Impairment of Holders' Rights.
Nothing contained in this Indenture, any supplemental indenture issued
pursuant to Section 3.01, or in any of the Subordinated Debt Securities or
Coupons, if any, appertaining thereto or the Guarantees thereof shall (i)
impair, as between the Company and Holders of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto, or as between the Guarantor and the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto, the obligations of the Company or Guarantor, as the
case may be, to make, or prevent the Company or Guarantor from making, at any
time except as provided in Sections 12.02, 12.03, 12.05 and 12.06, payments of
principal, premium, if any, or interest (including interest accruing subsequent
to the commencement of any proceeding for the bankruptcy or reorganization of
the Company or Guarantor under any applicable bankruptcy, insolvency, or
similar law now or hereafter in effect) on the Subordinated Debt Securities and
Coupons, if any, appertaining thereto, and the Guarantees thereof as and when
the same shall become due and payable in accordance with the terms of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and the
Guarantees thereof (ii) affect the relative rights of the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Company other than the holders of the Senior Company
Indebtedness or the relative rights of the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Guarantor other than the holders of Senior Guarantor
Indebtedness, (iii) prevent the Holder of any Subordinated Debt Securities and
Coupons, if any, appertaining thereto or Guarantee thereof or the Trustee from
exercising all remedies otherwise permitted by applicable law upon default
thereunder, subject to the rights, if any, under this Article Twelve of the
holders of Senior Company Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of such remedy and the
holders of Senior Guarantor Indebtedness in respect of cash, property or
securities of the Guarantor received upon the exercise of such remedy, or (iv)
prevent the application by the Trustee or any Paying Agent of
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any moneys deposited with it hereunder to the payment of or on account of the
principal of or premium, if any, or interest on the Subordinated Debt
Securities and Coupons, if any, appertaining thereto or prevent the receipt by
the Trustee or any Paying Agent of such moneys, if, prior to the third Business
Day prior to such deposit, the Trustee or such Paying Agent did not have
written notice of any event prohibiting the making of such deposit by the
Company or the Guarantor.
SECTION 12.08. Effectuation of Subordination by Trustee.
Each Holder of Subordinated Debt Securities and Coupons, if any,
appertaining thereto by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Twelve and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.09. Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture or any supplemental indenture issued pursuant to Section
3.01, neither the Trustee nor any Paying Agent shall be charged with knowledge
of the existence of any Senior Company Indebtedness or any Senior Guarantor
Indebtedness (other than Senior Company Indebtedness or Senior Guarantor
Indebtedness issued under this Indenture or any supplemental indenture issued
pursuant to Section 3.01) or of any event which would prohibit the making of
any payment or moneys to or by the Trustee or such Paying Agent, unless and
until a Responsible Officer of the Trustee or such Paying Agent shall have
received written notice thereof from the Company or from the holder of any
Senior Company Indebtedness or Senior Guarantor Indebtedness or from the
representative or any such holder.
SECTION 12.10. Trustee's Relation to Senior Company
Indebtedness or Senior Guarantor Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Company Indebtedness or Senior Guarantor
Indebtedness at any time held by it in its individual capacity to the same
extent as any other holder of such Senior Company Indebtedness or Senior
Guarantor Indebtedness, and nothing in this Indenture or any supplemental
indenture issued pursuant to Section 3.01 shall be construed to deprive the
Trustee of any of its rights as such holder.
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SECTION 12.11. No Waiver of Default or Event of Default.
The failure to make a payment pursuant to the Subordinated Debt
Securities and Coupons, if any, appertaining thereto by reason of any provision
in this Article shall not be construed as preventing the occurrence of a
Default or any Event of Default.
SECTION 12.12. Claims of the Trustee.
Nothing contained in This Article Twelve shall subordinate to Senior
Company Indebtedness or Senior Guarantor Indebtedness the claims of, or
payments to, the Trustee under or pursuant to Section 8.07.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or Coupon, or for any claim based thereon
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company, the Guarantor or the Trustee or of any predecessor or successor
corporation, either directly or through the Company, the Guarantor or the
Trustee, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood and agreed that this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company and the Guarantor and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers or directors, as such, of the
Company, the Guarantor or the Trustee or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or Guarantees or
implied therefrom, and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities, Coupons, or Guarantees
or implied therefrom, are hereby expressly waived and released as a
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condition of, and as a consideration for, the execution and delivery of this
Indenture and the issue of such Securities.
ARTICLE FOURTEEN
HOLDERS' MEETINGS
SECTION 14.01. Purposes of Meetings.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to the provisions of this Article
Fourteen for any of the following purposes:
(1) to give any notice to the Company, the Guarantor, or the
Trustee for the Securities of such series, or to give any directions to
the Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of
Article Seven;
(2) to remove the Trustee for such series and nominate a
successor trustee pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be,
under any other provision of this Indenture or under applicable law.
SECTION 14.02. Call of Meetings by Trustee.
The Trustee for the Securities of any series may at any time call a
meeting of Holders of Securities of such series to take any action specified in
Section 14.01 to be held at such time and at such place in the Borough of
Manhattan, the City of New York, or such other Place of Payment, as the Trustee
for such series shall determine. Notice of every meeting of the 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 to Holders of Securities of such series in the manner and to the extent
provided in Section 1.06.
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Such notice shall be given not less than 20 nor more than 90 days prior to the
date fixed for the meeting.
SECTION 14.03. Call of Meetings by Company, Guarantor or Holders.
In case at any time The Company or the Guarantor, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any or all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of
Securities of any or all series, as the case may be, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee for such series shall not have given the notice of such meeting
within 20 days after receipt of such request, then the Company, the Guarantor
or such Holders may determine the time and the place in the Borough of
Manhattan or other Place of Payment for such meeting and may call such meeting
to take any action authorized in Section 14.01 by giving notice thereof as
provided in Section 14.02.
SECTION 14.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a person shall be (a)
a Holder of one or more Securities with respect to which such meeting is being
held or (b) a person appointed by an instrument in writing as proxy by such
Holder. The only persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee for the Securities of the
series with respect to which such meeting is being held and its counsel and any
representatives of the Company, the Guarantor and their counsel; provided,
however, that representatives of the Trustee shall be entitled during a meeting
of Holders to meet with the Holders outside the presence of representatives of
the Company, the Guarantor and their counsel.
SECTION 14.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee for
the Securities of any series may make such reasonable regulations as it may
deem advisable for any meeting of Holders of the 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 think fit.
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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, the Guarantor or by Holders of the Securities of such series as
provided in Section 14.03, in which case the Company, the Guarantor or the
Holders 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 majority vote of the meeting.
At any meeting each Holder of Securities with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
1,000 (in the currency or currency unit in which such Securities are
denominated) principal amount (in the case of Original Issue Discount
Securities, such principal amount to be determined as provided in the
definition of "Outstanding") of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any such 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 other than by virtue of Securities of such series
held by him or instruments in writing aforesaid duly designating him as the
person to vote on behalf of other Holders of such series. At any meeting of
Holders, the presence of persons holding or representing Securities with
respect to which such meeting is being held in an aggregate principal amount
sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum is
present, the persons holding or representing a majority in aggregate principal
amount of such Securities represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a quorum had been
present. Any meeting of Holders of Securities with respect to which a meeting
was duly called pursuant to the provisions of Section 14.02 or Section 14.03
may be adjourned from time to time by a majority of such Holders present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 14.06. Voting.
The vote upon any resolution submitted to any meeting of Holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities
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
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in triplicate of the proceedings of each meeting of Holders 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
mailed as provided in Section 14.02. The record shall show the serial numbers
of the Securities voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the triplicates shall be delivered to each
of the Company and the Guarantor and the other to the Trustee to be preserved
by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 14.07. No Delay of Rights by Meeting.
Nothing contained in this Article Fourteen shall be deemed or construed
to authorize or permit by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities of any series.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PNC FUNDING CORP
by /s/ XXXXXXX X. XXXXX
--------------------------
Authorized Officer
(CORPORATE SEAL)
Attest: /s/ XXXXXXX X. XXXXXX
-------------------------
(Asst.) Secretary
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PNC FINANCIAL CORP
by /s/ X. XXXXXXXXXX
------------------------
Authorized Officer
(CORPORATE SEAL)
Attest: /s/ XXXXXXX X. XXXXXX
------------------------
(Asst.) Secretary
MANUFACTURERS HANOVER TRUST
COMPANY
by /s/ X. X. XXXXX
-------------------------
Vice President
(CORPORATE SEAL)
Attest: /s/ XXXX X. XXXXXXX
-------------------------
Assistant Vice President
000
- 000 -
XXXXXXXXXXXX XX XXXXXXXXXXXX )
) ss:
COUNTY OF ALLEGHENY )
On this 16th day of December, 1991, before me personally appeared
Xxxxxxx X. Xxxxx , to me known, who, being by me duly sworn, did depose and say
that he resides at 000 Xxx Xxxx, Xxxxxxxxxx, XX 00000 ; that he is Vice
President of PNC FUNDING CORP, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate 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.
/s/ XXXXXXXX X. XXXX
--------------------------
[Notary Public]
(NOTARIAL SEAL)
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ALLEGHENY )
On this 16th day of December, 1991, before me personally appeared
Xxxxxx X. Xxxxxxxxxx , to me known, who, being by me duly sworn, did depose and
say that he resides at 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000 ; that he is Sr. Vice
President of PNC FINANCIAL CORP, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate 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.
/s/ XXXXXXXX X. XXXX
--------------------------
[Notary Public]
(NOTARIAL SEAL)
000
- 000 -
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this 17th day of December, 1991, before me personally appeared X.X.
Xxxxx , to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxxxx Xx., Xxxxxxx, X.X.,; that he is Vice President of
MANUFACTURERS HANOVER TRUST COMPANY, one of the corporations described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
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.
/s/ XXXXXX XXXXXXXX
----------------------------
[Notary Public]
(NOTARIAL SEAL)
