EXHIBIT 4.1
THIS INDENTURE is entered into as of April [ ], 1999,
between NATIONAL COMMERCE BANCORPORATION, a corporation organized
and existing under the laws of the State of Tennessee
(hereinafter called the "Company"), having its principal
executive office at Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, and
The Bank of New York, a New York banking corporation (hereinafter
called the "Trustee"), having its principal corporate trust
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its
unsecured debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other
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Provisions of General Application
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SECTION 1.01. Definitions. For all purposes of this Indenture,
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except as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to
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the applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
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"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
["Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, any Vice President, the Treasurer, the
Secretary, the Comptroller, any Assistant Comptroller, any Assistant Treasurer
or any Assistant Secretary of the Company.]
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on
which banking institutions in the City of Memphis, Tennessee and any Place of
Payment for the Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if any time after
the execution and delivery of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
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"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its [Chairman of the
Board, its President, a Vice Chairman of the Board, or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Comptroller, an Assistant
Comptroller, its Secretary or an Assistant Secretary], and delivered to the
Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Designated Office" means the office of the Trustee located at BNY
Business Center, Corporate Trust, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx, 00000.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
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"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a Certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in any
composite currency or Foreign Currency, and signed by the [Chairman of the
Board, a Vice Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer] of the Company or the Exchange Rate Agent
appointed pursuant to Section 3.01 and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of
a series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security) or a
coupon, means the bearer thereof.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
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"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by [the Chairman of
the Board, the President, a Vice Chairman of the Board, or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company], and
delivered to the Trustee. Each such certificate shall contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
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to be redeemed, notice of such redemption has been duly
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given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
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principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
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"Repayment Price", when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
any officer or agent of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer or agent of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
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however, that, if at any time there is more than one Person acting as Trustee
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under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
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"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
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application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
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where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the
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certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand,
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authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders or Holders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable in whole or in part as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 8.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 15.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by or on behalf of any legal entity other than an individual,
such
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certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
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(vii) For purposes of determining the principal amount of
Outstanding Securities of any series the Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that
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is the Holder of a Global Security, may make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is the Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Depositary's standing
instructions and customary practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
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demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Designated Office, Attention:_______________
with a copy to its Principal Corporate Trust Office, Attention: Corporate
Trustee Administration Department; or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
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SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or
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any Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder of Registered Securities affected by
such event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, or, if not practicable, elsewhere in Europe on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer
17
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
-------------------------
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
----------------------------------
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
--------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities, express or implied,
18
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as
---------------
contemplated by Section 3.01 with respect to any series of Securities, in any
case where any Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date of any Security or any date on which any Defaulted Interest is
proposed to be paid shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provisions of the Securities or this Indenture)
payment of the principal of, premium, if any, or interest on any Securities need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or on
the date on which Defaulted Interest is proposed to be paid, and, if such
payment is made, no interest shall accrue on such payment for the period from
and after any such Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date, or date on which Defaulted Interest is proposed to be paid, as
the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall
--------------
be construed in accordance with and governed by the laws of the State of New
York.
ARTICLE TWO
Security Forms
--------------
SECTION 2.01. Forms Generally. All Securities and any related
----------------
coupons shall have such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the
19
Securities of each series shall be issuable in registered form without coupons.
If so provided as contemplated by Section 3.01, the Securities of a series shall
be issuable solely in bearer form, or in both registered form and bearer form.
Unless otherwise specified as contemplated by Section 3.01, Securities in bearer
form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be
-------------------
in one of the forms approved from time to time by or pursuant to a Board
Resolution or an indenture supplemental hereto. Upon or prior to the delivery
of a Security or coupons in any such form to the Trustee for authentication, the
Company shall deliver to the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved,
certified by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
20
SECTION 2.03. Form of Trustee's Certificate of Authentication.
------------------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ]
as Trustee,
by _______________________________
Authorized Officer/Signatory
SECTION 2.04. Global Securities. If Securities of a series are
------------------
issuable in whole or in part in global form, as specified as contemplated by
Section 3.01, then, notwithstanding clause (xii) of Section 3.01 and the
provisions of Section 3.02, such Global Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
ARTICLE THREE
The Securities
--------------
SECTION 3.01. Title and Terms. The aggregate principal amount of
----------------
Securities which may be authenticated and delivered under this Indenture is
unlimited. The
21
Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial
public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series pursuant to
this Article Three or Sections 4.07, 9.06 or 14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Interest Payment
Date and the basis upon which interest shall be calculated if
22
other than that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, and, if any such currency of denomination is a composite
currency, the agency or organization, if any, responsible for overseeing
such composite currency;
23
(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any) or
any interest on Securities of the series may be determined with reference
to an index, the method or methods by which such amounts shall be
determined;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants of
the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board
24
Resolution and set forth, or determined in the manner provided in such Officers'
Certificate or in any indenture supplemental hereto.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
Notwithstanding Section 3.01(ii) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
--------------
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the
Securities of any series, the Registered Securities of each series shall be
issuable only as Securities without coupons in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $5,000 and any integral
multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities shall be executed on behalf of the Company by its [Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries]. The signatures of any or all of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Company's [Chairman of the Board, its President, a Vice Chairman of the Board,
one of its Vice Presidents or its Treasurer].
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and
25
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
-------- -------
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
----------------
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in
26
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel complying with Section 1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms, have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
--------
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by
27
the Company that as of the date of such request, the statements made in the
Officers' Certificate or other certificates delivered pursuant to Sections 1.02
and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its
authentication; and unless otherwise specified as contemplated by Section 3.01,
each Bearer Security and any temporary Global Security referred to in Section
3.04 shall be dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel)
28
stating that such Security or portion thereof has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
---------------------
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series which may be issuable
as Bearer Securities, such temporary Securities may be in global form,
representing such of the Outstanding Securities of such series as shall be
specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the
following paragraphs, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Securities,
the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall
-------- -------
be delivered in exchange for a temporary Registered Security; and provided
--------
further
-------
29
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth
in the provisions of the third paragraph of Section 3.03. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
(ii) If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided in such
temporary Global Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit
of the operator of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct). Upon receipt of written instructions (which
need not comply with Section 1.02) signed on behalf of the Company by any
Person authorized to give such instructions, the Trustee or any
Authenticating Agent shall endorse such temporary Global Security to
reflect the initial principal amount, or an increase in the principal
amount, of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any
time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest
of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities (including a
definitive Global Bearer Security) of such series and of like tenor
following the Global Exchange Date (as defined below) when the account
holder instructs Euroclear or CEDEL S.A., as the case may be, to request
such exchange on his behalf and delivers to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form required by Section 3.11(i), dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying
30
Agent. Unless otherwise specified in such temporary Global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL S.A.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to any
such Authenticating Agent, definitive Securities in aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. Unless otherwise specified as contemplated by
Section 3.01, such definitive Securities shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as may be
specified by the Company, the Trustee or any such Authenticating Agent, as
may be appropriate. On or after the Global Exchange Date, such temporary
Global Security shall be surrendered by the Common Depositary to the
Trustee or any such Authenticating Agent, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series, of authorized
denominations and of like tenor as the portion of such temporary Global
Security to be exchanged, which, except as otherwise specified as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof; provided, however, that,
-------- -------
unless otherwise specified in such temporary Global Security, upon such
presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global
31
Security held for its account then to be exchanged and a certificate dated
the Global Exchange Date or a subsequent date and signed by CEDEL S.A., as
to the portion of such temporary Global Security held for its account then
to be exchanged, each in the form required by Section 3.11(ii); and
provided further that a definitive Bearer Security (including a definitive
----------------
global Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the conditions set forth
in the provisions of the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee
or any such Authenticating Agent, as the case may be, to reflect the
reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount
so exchanged. Until so exchanged in full, such temporary Global Security
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by
Section 3.01, interest payable on such temporary Global Security on an
Interest Payment Date for Securities of such series occurring prior to the
applicable Global Exchange Date shall be payable, without interest, to
Euroclear and CEDEL S.A. on or after such Interest Payment Date upon
delivery by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent,
as the case may be, of a certificate or certificates in the form required
by Section 3.11(iii), for credit on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial owners of
such temporary Global Security on such Interest Payment Date and who have
each delivered to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form required by Section 3.11(iv). Any interest so
received by Euroclear and CEDEL S.A. and not paid as herein provided prior
to the Global Exchange Date shall be returned to the Trustee or Paying
Agent, as the case may be, which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company on Company
Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
With respect to Registered Securities, the Company shall keep or cause to be
kept a
32
register (sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar" as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have The City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in The City of New
York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such
33
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of any such
payment from the Company; provided, however, that interest represented by
-------- -------
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency of a Paying Agent, maintained pursuant to Section 5.02
for such purpose, located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for individual Securities represented
thereby, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under
34
Section 3.03, the Company shall appoint a successor Depositary with respect to
the Securities of such series. If a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 3.01(vii) shall no longer be effective with respect
to the Securities of such series and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a
new Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
35
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
-------- -------
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such
Registered Securities to the Persons in whose names such Securities are so
registered or to the Depositary. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section 3.05 to the
Depositary or to the Persons at such addresses, and in such authorized
denominations, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing; provided, however, that no definitive Bearer
-------- -------
Security shall be delivered in exchange for a temporary Global Security other
than in accordance with the provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
36
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities or
portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in
37
effect and the Company has delivered to the Trustee a Company Order directing
the Trustee not to make such exchanges unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Orders to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
(i) any mutilated Security or Security with a mutilated coupon is surrendered to
the Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
-------- -------
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
--------
however, that payment of principal of (and premium, if any) and any interest on
-------
Bearer Securities shall be payable only at an office or agency located outside
the United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
38
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
-----------------------------------------------
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture. At the option of
the Company, payment of interest on any Registered Security may be made by check
in the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on
39
any Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or clause (ii)
below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of
40
business at such office or agency on the related proposed date of payment
of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such proposed date for payment and Defaulted
Interest will not be payable on such proposed date for payment in respect
of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security,
----------------------
any coupons appertaining thereto and any temporary Global Security shall pass by
delivery.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security, and
for all purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
41
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect
-------------
to a series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee shall deliver a certificate of such
disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
------------------------
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided
----------------------
pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification
42
be given by a Person entitled to receive a Bearer Security, such
certification shall be provided substantially in the form of Exhibit A
hereto, with only such changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form of
Exhibit B hereto, with only such changes as shall be approved by the
Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with payment of interest with respect to a temporary
Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner of
a portion of a temporary Global Security in connection with payment of
interest with respect to a temporary Global Security prior to the related
Global Exchange Date, such certification shall be provided substantially in
the form of Exhibit D hereto, with only such changes as shall be approved
by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to
----------
Section 3.01, for the Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be specified as
contemplated in Section 3.01, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Securities of any
series and any appurtenant coupons in a Foreign Currency, composite currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and agrees that judgments in respect of such Securities shall
be given in the Designated Currency; (b) the obligation of the Company to make
payments in the Designated Currency of the principal of (and premium, if any)
and interest on such Securities and any appurtenant coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment
43
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and cost of exchange) in the country of
issue of the Designated Currency in the case of Foreign Currency or Dollars or
in the international banking community in the case of a composite currency on
the Business Day immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may
--------------
use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally
in use), and if, so, the Trustee shall use such numbers in notices of redemption
or other related material as a convenience to Holders; provided that, any such
--------
notice or other related material may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other related material and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
Redemption of Securities
------------------------
SECTION 4.01. Applicability of Article. Securities of any series
-------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of
--------------------------------------
the Company to redeem any Securities redeemable at the option of the Company
shall be evidenced by an Officers' Certificate. In case of any redemption at
the election of the Company of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
44
Trustee and the Security Registrar of such Redemption Date and of the principal
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be
---------------------------------------------------
Redeemed. If less than all the Securities of any series with the same terms are
---------
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Security Registrar from
the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains outstanding
shall not be less than the minimum authorized denomination for Securities of
such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be
---------------------
given in the manner provided in Section 1.06, not less than 30 nor more than 60
days prior
45
to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if
any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case of
Bearer Securities with all remaining coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price;
(vi) that the redemption is from a sinking fund, if such is the case;
and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number
(or any other number used by a Depositary to identify such Securities), if
any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
----------------------------
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to
46
be redeemed on that date; provided, however, that deposits with respect to
-------- -------
Bearer Securities shall be made with a Paying Agent or Paying Agents located
outside the United States except as otherwise provided in Section 5.02, unless
otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
--------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
--------
however, that installments of interest on Bearer Securities whose Stated
-------
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by coupons shall be payable only at an office
-------
or agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
47
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at the office or agency of the
Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The
---------------------------------------------
Trustee shall not redeem any Securities (unless all Securities then Outstanding
are to be redeemed) or commence the giving of any notice of redemption of
Securities during the continuance of any Event of Default known to the Trustee,
except that where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem such Securities, provided
funds are deposited with it for such purpose. Any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
-------- -------
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE FIVE
Covenants
---------
SECTION 5.01. Payment of Principal, Premium and Interest. The
-------------------------------------------
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and
48
interest on the Securities of such series in accordance with the terms of the
Securities of such series, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.01 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only outside the United States upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a
--------------------------------
series are issuable only as Registered Securities, the Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If Securities of a series may be
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served, (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
-------- -------
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be
49
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations, and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 5.04) at the place specified for the purpose as contemplated
by Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
-------- -------
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
50
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
-------- -------
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless and until the
Company rescinds one or more such appointments, the Company hereby appoints:
(i) The [ ], as its Paying Agent in The City of New York with
respect to all series of Securities having a Place of Payment in The City of New
York [and (ii) the [ ] at its principal office as its Paying Agent in the [
] with respect to all series of Securities having a Place of Payment in the [
]].
SECTION 5.03. Money for Security Payments To Be Held in Trust. If
------------------------------------------------
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of, premium, if any, or interest on any Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying
51
Agent shall agree with the Trustee subject to the provisions of this Section,
that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, premium,
if any, or interest on Securities of such series and any appurtenant
coupons in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such series
or any appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that,
52
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series
-------------------
provide for the payment of additional amounts, the Company will pay to the
Holder of any Security of any series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to
53
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or reasonable expense incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver
---------------------------
to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
-------- -------
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, an Event of Default, or if such an event has occurred
and is continuing, specifying such event known to him and the nature and
status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
----------------------------------------------
Franchises. So long as any of the Securities shall be Outstanding, the Company
-----------
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
-------- -------
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material
54
respect to the Holders, (ii) prevent any consolidation or merger of the Company,
or any conveyance or transfer of its property and assets substantially as an
entirety to any person, permitted by Article Ten, or (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
SECTION 5.07. Limitation on Disposition of Stock of Banks. So long
--------------------------------------------
as any Securities shall be Outstanding, neither the Company nor any Intermediate
Subsidiary (as hereinafter defined) will (except to the Company or an
Intermediate Subsidiary) sell, assign, transfer, grant a security interest in or
otherwise dispose of any shares of, securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of voting stock of
National Bank of Commerce, Memphis, Tennessee, NBC Bank, FSB, Knoxville,
Tennessee or NBC Bank, FSB, Belzoni, Mississippi (each a "Bank" and together the
"Banks"), nor will the Company or any Intermediate Subsidiary permit any Bank
to issue any shares of, or securities convertible into, or options, warrants or
rights to subscribe for or purchase shares of, voting stock of such Bank, nor
will the Company permit any Intermediate Subsidiary that owns any shares of, or
securities convertible into, or options, warrants or rights to subscribe for or
purchase shares of, voting stock of any Bank to cease to be an Intermediate
Subsidiary, except that (i) the Company or an Intermediate Subsidiary may with
respect to a Bank make any such sale, assignment, transfer, or grant of a
security interest or other disposition for fair market value on the date
thereof, as determined by the Board of Directors of the Company or such
Intermediate Subsidiary, as the case may be (which determination shall be
conclusive), and evidenced by a duly adopted resolution thereof, and (ii) in
each such case, after giving effect thereto, the Company and any one or more
Intermediate Subsidiaries will own at least 80% of the voting stock of that Bank
then issued and outstanding free and clear of any security interest.
Notwithstanding the foregoing, a Bank may be merged into or consolidated with
another banking institution organized under the laws of the United States, any
State thereof or the District of Columbia, if after giving effect to such merger
or consolidation the Company and any one or more Intermediate Subsidiaries own
at least 80% of the voting stock of such other banking institution and
immediately after giving effect thereto and treating any such resulting bank
thereafter as such Bank for purposes of this Indenture, no Event of Default, and
no event which, after notice or lapse
55
of time or both, would become an Event of Default, shall have happened and be
continuing. For purposes of this Section, an "Intermediate Subsidiary" means a
Subsidiary (i) that is organized under the laws of the United States, any State
thereof or the District of Columbia, and (ii) of which all the shares of each
class of capital stock issued and outstanding, and all securities convertible
into, and options, warrants and rights to subscribe for or purchase shares of,
such capital stock, are owned directly by the Company, free and clear of any
security interest.
The provisions of this Section 5.07 shall not prohibit the Company
from consolidating with or merging into any other Person or from conveying,
transferring or leasing the Company's properties and assets substantially as an
entirety to any Person as otherwise permitted pursuant to Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 6.01. Company To Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee (i)
--------
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is requested to be furnished; provided, however, that if and so
-------- -------
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy
56
any list furnished to it as provided in Section 6.01 upon receipt of a new list
so furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either:
(a) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall
57
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise, the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 15
-------------------
of each year commencing with the year 2000, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any
58
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
-------------------
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to
the extent provided in Section 6.03(ii), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
59
ARTICLE SEVEN
Remedies
--------
SECTION 7.01. Events of Default. "Event of Default", with respect to
------------------
any series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(ii) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(iii) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(iv) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Company in an involuntary
case under the Federal Bankruptcy Code, adjudging the Company a bankrupt,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under the Federal Bankruptcy Code or any other applicable Federal
60
or State bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of its properties, 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; or
(v) the institution by the Company of proceedings to be adjudicated a
bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or similar law, or the consent by the Company to the filing of
any such petition or to the appointment of a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar official) of
the Company or of substantially all of its properties; or
(viii) any other Event of Default provided with respect to Securities of
that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
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(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest on all Securities of
such series;
(b) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series;
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents
and counsel and all other amounts due the Trustee under Section 8.07;
and
(ii) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 7.13.
No such recession shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
--------
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon
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appertaining thereto, if any, the whole amount then due and payable on any such
Security or coupon for principal, premium, if any, and interest, with interest
upon the overdue principal and premium, if any, and (to the extent that payment
of such interest shall be lawful) upon overdue installments of interest, at the
rate or rates prescribed therefor by the terms of any such Security; and, in
addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
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(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 8.07) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or under the
-----------
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining
64
thereto in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by
-------------------------------
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee, and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities of such series
or coupons appertaining thereto, if any, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest,
respectively. The Holders of each series of Securities denominated in any
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Exchange Rate as of the
Business Day immediately preceding the date of payment; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
--------------------
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
65
(ii) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
----------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
---------------------
the Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or
-----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then
66
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities or coupons in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of
-----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that:
--------
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction;
(iii) subject to the provisions of Section 8.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a
67
Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability; and
(iv) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
------------------------
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of 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 by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if
68
any, or interest on any Security or payment of any coupon on or after the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
---------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE EIGHT
The Trustee
-----------
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
------------------------------------
during the continuance of an Event of Default with respect to any series of
Securities:
(a) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to Securities
of such series, and no implied covenants or obligations shall be read into
this Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform as to form to the
requirements of the Indenture.
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(ii) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(iii) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence
------------------
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
70
receive reports pursuant to Section 6.03(ii) notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
-------- -------
principal of, premium, if any, or interest on any Security of such series, or
any related coupons or in the payment of any sinking fund installment with
respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided further,
----------------
that, in the case of any default of the character specified in Section 7.01(iii)
with respect to Securities of such series, no such notice to Holders of
Securities of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time, or both, would become, an Event of Default with respect to
Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall
71
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(viii) the Trustee shall not be charged with knowledge of any default (as
defined in Section 8.02) or Event of Default unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Trustee by the Company or any
Holder;
(ix) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture; and
(x) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security
72
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article Eight shall also be afforded to such Paying Agent,
Authenticating Agent or Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
--------------------
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in
--------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
-------------------------------
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
73
(iii) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(iv) or (v), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any
lien arising hereunder shall survive the resignation or removal of any Trustee,
the discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
----------------------------------------
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
to have a conflicting interest with respect to the Securities of any series by
virtue of being Trustee with respect to the Securities of any particular series
of Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be a Trustee with respect to each series of Securities hereunder
which shall be a corporation organized and doing business under the laws
74
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that if Section
-------- -------
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
75
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to
any series of Securities after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of such series
for at least six months; or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series; or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee
76
with respect to such series, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the
---------------------------------------
case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money
77
held by such retiring Trustee hereunder with respect to all or any such series,
subject nevertheless to its lien, if any, provided for in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more
78
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (i) or (ii) of this Section,
as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee. Any corporation into which the Trustee may be merged or
--------------------
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided that such corporation shall be otherwise qualified and
--------
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If
--------------------------------------------------
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of any claims as
a creditor against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
-------------------------------------
appoint an Authenticating Agent or Agents, which may include any Affiliate of
the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the
79
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
--------
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the
80
Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee,
by
___________________________
as Authenticating Agent
by
___________________________
Authorized Signatory
ARTICLE NINE
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
81
(i) to evidence the succession of another corporation or Person to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series of Securities and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under the Indenture; provided that such action shall not adversely affect
--------
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(v) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form; provided any such action
--------
shall not adversely affect the interests of the Holders of
82
Securities of any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture; provided that any such addition, change or elimination (a) shall
--------
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision or
(b) shall not apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms
thereof; or
(xi) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act; provided such action shall not adversely affect
--------
the interest of Holders of Securities of any series or any appurtenant
coupons in any material respect.
SECTION 9.02. Supplemental Indentures With Con-sent of Holders. With
-------------------------------------------------
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
-------- -------
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
83
(i) change the Maturity of the principal of, or the Stated Maturity of
any installment of interest (or premium, if any) on, any Security, or
reduce the principal amount thereof or any premium thereon or the rate of
interest thereon, or change the obligation of the Company to pay additional
amounts pursuant to Section 5.04 (except as contemplated by Section
10.01(i) and permitted by Section 9.01), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 7.02, or change the method of calculating interest thereon or
the coin or currency in which any Security (or premium, if any, thereon) or
the interest thereon is payable, or reduce the minimum rate of interest
thereon, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment
Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required for
any waiver of certain defaults hereunder and their consequences) provided
for in this Indenture or reduce the requirements of Section 15.04 for a
quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any
84
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
-------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
85
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:
(i) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest
(including all additional amounts, if any, payable pursuant to Section
5.04) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any
---------------------------------
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person 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 Person
had been named as the Company herein. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this
86
Indenture and may be dissolved, wound up and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
--------------------------
SECTION 11.01. Satisfaction and Discharge of Indenture. This
----------------------------------------
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either:
(a) all Securities theretofore authenticated and delivered (other
than (1) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has not been waived as provided in
Section 3.05, (2) coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 4.06, (3) coupons
appertaining to Bearer Securities surrendered for repayment pursuant
to Section 15.03 and maturing after the Repayment Date, whose
surrender has been waived as provided in Section 15.03, (4) Securities
and coupons which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06, and (5) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
5.03) have been delivered to the Trustee for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee
for cancellation:
(1) have become due and payable, or
87
(2) will become due and payable at their Maturity within one
year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount sufficient to pay and discharge the entire indebtedness
on such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due and payable),
or to the Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
88
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
--------------
unable to apply any money in accordance with Section 11.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
----------------------------------------
Officers and Directors
----------------------
SECTION 12.01. Exemption from Individual Liability. No recourse
------------------------------------
under or upon any obligation, covenant or agreement of this Indenture, or of any
Security or coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
89
ARTICLE THIRTEEN
Sinking Funds
-------------
SECTION 13.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
--------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the
90
terms of that series, (ii) the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 13.02,
and (iii) that none of such Securities has theretofore been so credited and
stating the basis for such credit, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each sinking fund
payment date the Security Registrar shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 4.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 4.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 4.06 and 4.07 and shall be subject to
Section 4.08.
ARTICLE FOURTEEN
Repayment at the Option of Holders
----------------------------------
SECTION 14.01. Applicability of Article. Securities of any series
-------------------------
which are repayable at the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 14.02. Repayment of Securities. Each Security which is
------------------------
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 14.03. Exercise of Option, Notice. Each Holder desiring to
---------------------------
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
-------- -------
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall
91
be equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
-------- -------
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and
tenor, of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
-------- -------
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States Federal income tax
laws and regulations in effect at the
92
time of the exchange; neither the Company, the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has
received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States Federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 14.04. Election of Repayment by Remarketing Entities. The
----------------------------------------------
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 14.03.
SECTION 14.05. Securities Payable on the Repayment Date. Notice of
-----------------------------------------
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 14.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
93
ARTICLE FIFTEEN
Meetings of Holders of Securities
---------------------------------
SECTION 15.01. Purposes for Which Meetings May Be Called. If
------------------------------------------
Securities of a series are issuable in whole or in part as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 15.02. Call, Notice and Place of Meetings. (i) The Trustee may
-----------------------------------
at any time call a meeting of Holders of Securities of any series issuable in
whole or in part as Bearer Securities for any purpose specified in Section
15.01, to be held at such time and at such place in the City of Memphis,
Tennessee, the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 15.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Memphis, Tennessee, the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (i) of this Section.
94
SECTION 15.03. Persons Entitled to Vote at Meetings. To be entitled
-------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 15.04. Quorum; Action. The Persons entitled to vote a
---------------
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.02(i), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as
-------- -------
95
limited by the provisos to Section 9.02, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be given by the
Holders of a greater percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of such greater percentage in principal amount of the
Outstanding Securities of that series; and provided further that, except as
-------- -------
limited by the provisos to Section 9.02, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 15.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
------------------------
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
96
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 15.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in any composite currency or a Foreign Currency) of Securities of
such series held or represented by him; provided, however, that no vote shall be
-------- -------
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 15.06. Counting Votes and Recording Action of Meetings. The
------------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary
97
of the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 15.02 and, if applicable, Section 15.04. Each copy shall be signed and
verified by the affidavits of the permanent chairperson and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
Miscellaneous
-------------
SECTION 16.01. Counterparts. This Indenture may be executed in any
-------------
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
The Bank of New York, hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
98
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.
NATIONAL COMMERCE
BANCORPORATION,
by
_______________________
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
_____________________________
Assistant Secretary
The Bank of New York, as
Trustee,
by
_______________________
Name:
Title:
[Seal]
[CORPORATE SEAL]
STATE OF )
) ss.:
COUNTY OF )
On this day of , 1999, before me personally came to me
known, , who, being by me duly sworn, did depose and say that he
resides at [ ]; that he is [ ] of NATIONAL
COMMERCE BANCORPORATION, 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.
__________________________
Notary Public
[Notarial Seal]
STATE OF ,)
) ss.:
COUNTY OF ,)
On this day of , 1999, before me personally appeared
, to me known, who, being by me duly sworn, did depose and say that he resides
at ; that he is a of [ ], one of the
parties 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.
__________________________
Notary Public
[Notarial Seal]
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
...................
[Insert title or sufficient description of
Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial interest
in the Securities is being acquired by or on behalf of a United States person,
that such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If
the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; provided, however, that, if the
-------- -------
undersigned has actual knowledge that the information contained in such a
certificate is false, the undersigned will not deliver a Security in temporary
or definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: 19
[To be dated no earlier than 15 days prior to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security)
_____________________________
(Authorized Signatory)
Name:
Title:
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN
CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
...................
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $____ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: , 19
[To be dated no earlier than
the Exchange Date]
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By ______________________________
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert
Date], the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date
will be paid to each of the persons appearing in our records as being entitled
to interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (S) 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
The foregoing reflects any advice received subsequent to the date of
any certificate stating that the statements contained in such certificate are no
longer correct.
Dated: , 19
[To be dated on or after the
relevant Interest Payment Date]
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By ______________________________
______
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
temporary global Security representing the above-captioned Securities and held
by you for our account is beneficially owned by a United States person or, if
any portion thereof held by you for our account is beneficially owned by a
United States person, such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder, and
certifies that either it has provided an Internal Revenue Service Form W-9 or is
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury regulations.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the Interest Payment Date on [Insert
Date] as to any such portion of such temporary global Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: , 19
[To be dated on or after the 15th
day before the relevant Interest
Payment Date]
[Name of Account Holder]
______________________________
(Authorized Signatory)
Name:
Title:
