<PAGE>
As filed with the Securities and Exchange Commission on February 3, 1995
Post-Effective Amendment No. 1 to Registration Statement No. 33-59246
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
BARNETT BANKS, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-0560515
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
(904) 791-7720
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------------
CHARLES E. RICE
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
BARNETT BANKS, INC.
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
(904) 791-7720
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------
Copies to:
HALCYON E. SKINNER, ESQ. LEE MEYERSON, ESQ.
MAHONEY ADAMS & CRISER, P.A. SIMPSON THACHER & BARTLETT
50 NORTH LAURA STREET 425 LEXINGTON AVENUE
JACKSONVILLE, FLORIDA 32202 NEW YORK, NEW YORK 10017
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to Be Proposed Maximum Aggregate Proposed Maximum Amount of
Securities To Be Registered Registered Offering Price Per Unit * Aggregate Offering Price * Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities
- ----------------------------
Preferred Stock $1,000,000,000 ** 100% $1,000,000,000 $344,830
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value *** **** **** None
$2.00 per share (including
preferred stock purchase
rights)
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
<FN>
* Estimated solely for the purpose of determining the registration fee.
** There is being registered hereunder such Debt Securities and such number of shares of Preferred Stock as will result in an
aggregate offering price of $1,000,000,000 or the equivalent thereof in one or more foreign currencies, or, if any Debt
Securities are issued at an original issue discount, such greater principal amount as shall result in an aggregate
offering price of $1,000,000,000.
*** Such indeterminate number of shares of Common Stock as may be issuable upon conversion of Debt Securities or Preferred
Stock. Prior to the occurrence of certain events, the Preferred Stock Purchase Rights will not be evidenced separately from
the Common Stock.
**** No separate consideration will be received.
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement contains a combined Prospectus and relates to Registration Statement
No. 33-59246 previously filed by the Registrant on Form S-3 and declared
effective on May 19, 1993. This Registration Statement also constitutes
Post-Effective Amendment No. 1 to Registration Statement No. 33-59246 and such
Post-Effective Amendment shall hereafter become effective concurrently with the
effectiveness of this Registration Statement and in accordance with Section 8(c)
of Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
<PAGE>
PROSPECTUS
BARNETT BANKS, INC.
DEBT SECURITIES
PREFERRED STOCK
Barnett Banks, Inc. (the "Corporation"), a Florida corporation, from time
to time may issue, in one or more series, its notes, debentures or other
unsecured evidences of indebtedness (the "Debt Securities") and may issue, in
one or more series, its Preferred Stock, $.10 par value (the "Preferred Stock"),
on terms to be determined at the time of sale, all having an aggregate initial
offering price not to exceed $1,186,400,000, or the equivalent thereof in one
or more foreign currencies, including composite currencies such as the European
Currency Unit ("ECU"). The Debt Securities may be either senior in priority of
payment (the "Senior Securities") or subordinated in priority of payment (the
"Subordinated Securities"). The Debt Securities and the Preferred Stock
(together, the "Securities") may be offered, separately or together, as separate
series in amounts, at prices and on terms to be set forth in supplements to this
Prospectus (a "Prospectus Supplement").
If Debt Securities are offered, the terms of the Debt Securities,
including, when applicable, the specific designation; priority; aggregate
principal amount; denominations and currency or currency unit for which the Debt
Securities may be purchased; the currency or currency rate in which the
principal and any interest is payable; maturity; interest rate (or method of
calculation); time of payment of interest; any terms for redemption at the
option of the Corporation or the holder, or terms for conversion into shares of
Common Stock, $2.00 par value, of the Corporation ("Common Stock"); terms for
sinking fund payments; stock exchange listing; and other terms in connection
with the offering and sale of the Debt Securities in respect of which this
Prospectus is being delivered, will be set forth in the accompanying Prospectus
Supplement. The Debt Securities may be issued in registered or bearer form. In
addition, all or a portion of the Debt Securities of a series may be issuable in
temporary or permanent global form.
If Preferred Stock is issued, the terms of the Preferred Stock, including,
when applicable, the specific number of shares; title; issuance price; dividend
rate (or method of calculation); dividend payment dates; voting and other
rights; redemption or sinking fund provisions; conversion rights; and other
specific terms of the series of Preferred Stock in respect of which this
Prospectus is being delivered will be set forth in the accompanying Prospectus
Supplement.
The Securities may be sold to underwriters for public offering pursuant to
terms of offering fixed at the time of sale. In addition, the Securities may be
sold by the Corporation directly or through agents designated from time to time.
See "Plan of Distribution." The Prospectus Supplement will also set forth, with
respect to the sale of the Securities in respect of which this Prospectus is
being delivered, the names of such underwriters, agents or dealers, if any, the
terms of the offering and any applicable commissions or discounts, and the net
proceeds to the Corporation from such sale. Any underwriters, dealers or agents
participating in the offering may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act").
________
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL NOT BE
OBLIGATIONS OF A BANK, ARE NOT DEPOSITS AND WILL NOT BE INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR BY ANY OTHER GOVERNMENT AGENCY.
________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
________
THE DATE OF THIS PROSPECTUS IS FEBRUARY 3, 1995.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Commission's
public reference room located at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the public reference facilities in the Commission's regional offices
located at: Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and Seven World Trade Center, New York, New York 10048.
Copies of such materials can be obtained at prescribed rates by writing to the
Securities and Exchange Commission, Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C. 20549. Certain of the Corporation's securities are listed
on the New York Stock Exchange, Inc. ("NYSE"), and reports, proxy statements and
other information concerning the Corporation may be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005.
The Corporation has filed with the Commission a Registration Statement on
Form S-3 (together with any amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the Securities. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Such additional information may be obtained from
the public reference room of the Commission, 450 Fifth Street, N.W., in
Washington, D.C. 20549. Statements contained in this Prospectus or in any
document incorporated by reference in this Prospectus as to the contents of any
contract or other document referred to herein or therein are not necessarily
complete, and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement or such other
document, each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission by the Corporation are
incorporated, as of their respective filing dates, by reference in this
Prospectus.
(a) the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1994;
(b) the description of the Corporation's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
December 12, 1979; and
(c) the description of the Corporation's Junior Participating Preferred
Stock Purchase Rights, as amended, contained in its Registration
Statement on Form 8-A, filed with the Commission on July 12, 1990.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Securities offered hereby shall be deemed to
be incorporated herein by reference and to be a part hereof from the filing date
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated herein by reference shall be deemed to be modified
or superseded for purposes hereof to the extent that a statement contained
herein or in any other subsequently filed document which also is, or is deemed
to be, incorporated herein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to constitute a
part hereof, except as so modified or superseded.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS DESCRIBED ABOVE UNDER
"INCORPORATION OF CERTAIN INFORMATION BY REFERENCE" (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS). REQUESTS SHOULD BE DIRECTED TO:
BARNETT BANKS, INC.
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
ATTENTION: CORPORATE COMMUNICATIONS
(TELEPHONE: (904) 791-7668)
-2-
<PAGE>
THE CORPORATION
The Corporation, organized in 1930, is a bank holding company registered
under the Bank Holding Company Act of 1956, as amended (the "BHC Act"). As of
December 31, 1994, the Corporation owned 31 commercial banks having 628 offices
throughout Florida and Georgia. The Corporation also owns nonbanking
subsidiaries that provide support services and specialized financial services,
including trust, merchant services, full-service brokerage, credit-related
insurance, credit card and mortgage banking services. On December 31, 1994, the
Corporation had total assets of $41.3 billion and total deposits of $35.1
billion. On that date, the Corporation was the 21st largest bank holding
company in the United States and the largest bank holding company in Florida.
The Corporation is a legal entity separate and distinct from its
subsidiaries. Accordingly, the right of the Corporation, and thus the right of
the Corporation's creditors and shareholders, to participate in any distribution
of the assets or earnings of any subsidiary is necessarily subject to the prior
claims of creditors of its subsidiaries, except to the extent that claims of the
Corporation in its capacity as a creditor may be recognized. The principal
source of the Corporation's revenues is dividends from its subsidiaries.
The principal executive offices of the Corporation are located at 50 North
Laura Street, Jacksonville, Florida 32202. Its mailing address is Post Office
Box 40789, Jacksonville, Florida 32203, and its telephone number is (904)
791-7720.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
For the last five years, the consolidated ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred stock dividend
requirements of the Corporation, computed as set forth below, were as follows:
YEAR ENDING DECEMBER 31,
Earnings to Fixed Charges: 1994 1993 1992 1991 1990
---- ---- ---- ---- ----
Excluding Interest on Deposits . . . . . . . . 4.92 6.04 3.27 1.56 1.23
Including Interest on Deposits . . . . . . . . 1.78 1.69 1.26 1.05 1.02
Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements:
Excluding Interest on Deposits . . . . . . . . 4.29 4.95 2.72 1.46 1.23
Including Interest on Deposits . . . . . . . . 1.73 1.64 1.23 1.04 1.02
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income plus applicable income taxes and fixed charges.
Fixed charges, excluding interest on deposits, represent interest expense
(except interest paid on deposits), capitalized interest, and the interest
factor included in rents. Fixed charges, including interest on deposits,
represent all interest expense, capitalized interest, and the interest factor
included in rents. Combined fixed charges and preferred stock dividend
requirements, excluding interest on deposits, represent interest expense (except
interest paid on deposits), capitalized interest, an amount equal to the pre-tax
earnings required to meet applicable preferred stock dividend requirements, and
the interest factor included in rents. Combined fixed charges and preferred
stock dividend requirements, including interest on deposits, represent all
interest expense, capitalized interest, an amount equal to the pre-tax earnings
required to meet applicable preferred stock dividend requirements, and the
interest factor included in rents.
USE OF PROCEEDS
Except as set forth in the applicable Prospectus Supplement, the
Corporation currently intends to use the net proceeds from the sale of
Securities for general corporate purposes, which may include the reduction of
short-term indebtedness, investments in, or extensions of credit to, its
subsidiaries and the financing of possible acquisitions. Pending such use, the
net proceeds may be temporarily invested in short-term obligations. The precise
amounts and timing of the application of proceeds will depend upon the funding
requirements of the Corporation and its subsidiaries and the availability of
other funds.
-3-
<PAGE>
REGULATORY MATTERS
GENERAL
As a bank holding company, the Corporation is subject to regulation and
supervision by the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") under the BHC Act. The various bank subsidiaries of the
Corporation are subject to regulation and supervision by the state banking
authorities of the states in which they are organized (in the case of state
chartered banks that are not members of the Federal Reserve System), the Federal
Reserve Board (in the case of state chartered banks that are members of the
Federal Reserve System), the Office of the Comptroller of the Currency (the
"OCC") (in the case of national banks), and the Federal Deposit Insurance
Corporation (the "FDIC").
The Corporation's nonbanking activities are also supervised by the Federal
Reserve Board. In addition, Barnett Banks Insurance, Inc. is subject to
insurance laws and regulations of the Florida Department of Insurance. The
activities of Barnett Securities, Inc. are governed by the Commission, the
National Association of Securities Dealers (the "NASD"), state securities laws
and the Federal Reserve Board.
The Corporation's banking subsidiaries are subject to restrictions under
federal law which limit the transfer of funds by the subsidiary banks to the
Corporation and its nonbanking subsidiaries, whether in the form of loans,
extensions of credit, investments or asset purchases. Such transfers by any
subsidiary bank to the Corporation or any nonbanking subsidiary are limited in
amount to 10% of the bank's capital and surplus and, with respect to the
Corporation and all such nonbanking subsidiaries, to an aggregate of 20% of such
bank's capital and surplus. Furthermore, such loans and extensions of credit are
required to be secured in specified amounts.
Under Federal Reserve Board policy, the Corporation is expected to act as a
source of financial strength to each subsidiary bank and to commit resources to
support such subsidiary bank in circumstances where the Corporation might not do
so absent such policy. In addition, any capital loans by the Corporation to any
of the subsidiary banks would also be subordinate in right of payment to
deposits and to certain other obligations of such subsidiary bank, including any
liabilities of such bank under the "cross-guarantee" provisions described below.
As a result of the enactment of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 ("FIRREA"), a depository institution
insured by the FDIC can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC after August 9, 1989, in connection with
(i) the default of a commonly controlled FDIC-insured depository institution or
(ii) any assistance provided by the FDIC to a commonly controlled FDIC-insured
depository institution in danger of default. "Default" is defined generally as
the appointment of a conservator or receiver and "in danger of default" is
defined generally as the existence of certain conditions indicating that a
"default" is likely to occur in the absence of regulatory assistance.
Pursuant to the Federal Deposit Insurance Corporation Improvement Act of
1991 ("FDICIA"), after December 31, 1994, the FDIC may not take any action that
would have the effect of increasing the losses to a deposit insurance fund by
protecting depositors for more than the insured portion of deposits (generally,
$100,000) or creditors other than depositors. The FDIC is also authorized by
FDICIA to settle all uninsured and unsecured claims in the insolvency of an
insured bank by making a final settlement payment after the declaration of
insolvency. Such a payment would constitute full payment and disposition of the
FDIC's obligations to claimants. The rate of such final settlement payments is
to be a percentage rate determined by the FDIC reflecting an average of the
FDIC's receivership recovery experience.
As a result of the provisions of law described above, in the event of the
insolvency of a subsidiary bank, the FDIC could limit or prohibit dividends
payable to the Corporation by such subsidiary and the Debt Securities could be
treated differently from, and holders of Debt Securities could receive
significantly less than holders of, deposit obligations of such a subsidiary.
FEDERAL DEPOSITOR PREFERENCE LEGISLATION
On August 10, 1993, the Federal Deposit Insurance Act was amended to
provide that in the event of the liquidation or other resolution of an insured
depository institution occurring on or after such date, the claims of depositors
of such institution (including claims by the FDIC as subrogee of insured
depositors) are entitled to priority in payment over the claims of any other
senior or general creditors of the institution, including any obligations to
shareholders of such depository institution in their capacity as such.
-4-
<PAGE>
DIVIDENDS
The principal source of funds for the Corporation is dividends paid to it
by its subsidiaries. Various federal and state statutory provisions limit the
amount of dividends the subsidiary banks can pay to the Corporation. The
approval of the OCC is required for any dividend by a national bank if the total
of all dividends declared by the bank in any calendar year would exceed the
total of its net income, as defined by the OCC, for that year to date combined
with its retained net income for the preceding two years less any required
transfers to surplus or a fund for the retirement of any preferred stock. A
similar provision is imposed on Florida state banks by the Florida Banking Code
and on Georgia state banks by the Financial Institutions Code of Georgia. In
addition, a national bank may not pay a dividend in an amount greater than its
undivided profits then on hand. Under these provisions, the Corporation's
subsidiary banks could have declared, as of December 31, 1994, aggregate
dividends of approximately $361 million. The payment of dividends by subsidiary
banks is affected by various factors, such as the maintenance of adequate
capital for such subsidiary banks as described more fully below. The Federal
Reserve Board, the OCC and the FDIC have indicated that as a general matter
dividends should be paid by banks only to the extent of earnings from continuing
operations.
CAPITAL
The Federal Reserve Board's risk-based capital guidelines for state member
banks and bank holding companies were fully phased in at the end of 1992. Under
those guidelines, the minimum ratio of total capital to risk-weighted assets is
8%. At least half of the total capital is to be comprised of common equity,
retained earnings and qualifying perpetual preferred stock, after subtracting
goodwill (with certain limited exceptions) and certain other adjustments, as
described below ("Tier 1 capital"). The remainder ("Tier 2 capital") may consist
of perpetual debt, mandatorily convertible debt securities, a limited amount of
subordinated debt, term preferred stock and a limited amount of loan loss
reserves. The Corporation's national banking subsidiaries are subject to similar
capital requirements adopted by the OCC. In addition, the Federal Reserve Board
requires a minimum leverage ratio (Tier 1 capital to total average assets,
excluding goodwill) of 3% for bank holding companies that meet certain specified
criteria, including having the highest regulatory rating. The rule indicates
that the minimum leverage ratio should be at least 1-2% higher for bank holding
companies that do not have the highest rating or that are undertaking major
expansion programs. The OCC has adopted substantially identical minimum leverage
ratio requirements. On December 31, 1994, the Corporation had a Tier 1
risk-based capital ratio of 9.68% and a total risk-based capital ratio of
12.42%. At that date, the Corporation had a leverage ratio of 6.97%.
Under the Federal Reserve Board's guidelines, the only types of intangible
assets that may be included in (i.e., not deducted from) a bank holding
company's capital are readily marketable purchased mortgage servicing rights
("PMSRs") and purchased credit card relationships ("PCCRs"), provided that, in
the aggregate, the total amount of PMSRs and PCCRs included in capital does not
exceed 50% of Tier 1 capital. PCCRs are subject to a separate sublimit of 25% of
Tier 1 capital. The amount of PMSRs and PCCRs that a bank holding company may
include in its capital is limited to the lesser of (i) 90% of such assets' fair
market value (as determined under the guidelines) or (ii) 100% of such assets'
book value, each determined quarterly. Identifiable intangible assets (i.e.,
intangible assets other than goodwill) other than PMSRs and PCCRs, including
core deposit intangibles, acquired on or before February 19, 1992 (the date the
Federal Reserve Board issued its original proposal for public comment) generally
will not be deducted from capital for supervisory purposes, although they will
continue to be deducted for purposes of evaluating applications filed by bank
holding companies.
FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991, enacted
in December 1991 ("FDICIA"), identifies, among other things, the following
capital standard categories for depository institutions: well capitalized,
adequately capitalized, undercapitalized, significantly undercapitalized and
critically undercapitalized. FDICIA imposes progressively more restrictive
constraints on operations, management and capital distributions depending on the
category in which an institution is classified. Pursuant to FDICIA,
undercapitalized institutions must submit recapitalization plans, and a company
controlling a failing institution must guarantee such institution's compliance
with its plan in order for the plan to be accepted by the regulators. FDICIA
also requires the various regulatory agencies to prescribe, within one year from
the date of enactment of FDICIA, certain non-capital standards for safety and
soundness relating generally to operations and management, asset quality and
executive compensation, and permits regulatory action against a financial
institution that does not meet such standards.
-5-
<PAGE>
Each of the federal banking agencies has issued final uniform regulations
that became effective December 19, 1992, which, among other things, define the
capital levels described above. Under the final regulations, a bank is
considered "well capitalized" if it (i) has a total risk-based capital ratio of
10% or greater, (ii) has a Tier 1 risk-based capital ratio of 6% or greater,
(iii) has a leverage ratio of 5% or greater and (iv) is not subject to any order
or written directive to meet and maintain a specific capital level for any
capital measure. An "adequately capitalized" bank is defined as one that has
(i) a total risk-based capital ratio of 8% or greater, (ii) a Tier 1 risk-based
capital ratio of 4% or greater and (iii) a leverage ratio of 4% or greater (or
3% or greater in the case of a bank with a composite CAMEL rating of 1). A bank
is considered (A) "undercapitalized" if it has (i) a total risk-based capital
ratio of less than 8%, (ii) a Tier 1 risk-based capital ratio of less than 4% or
(iii) a leverage ratio of less than 4% (or 3% in the case of a bank with a
composite CAMEL rating of 1); (B) "significantly undercapitalized" if the bank
has (i) a total risk-based capital ratio of less than 6%, (ii) a Tier 1
risk-based capital ratio of less than 3% or (iii) a leverage ratio of less than
3%; and (C) "critically undercapitalized" if the bank has a ratio of tangible
equity to total assets equal to or less than 2%. The applicable federal
regulatory agency for a bank that is "well capitalized" may reclassify it as
"adequately capitalized," or subject an "adequately capitalized" or
"undercapitalized" institution to the supervisory actions applicable to the next
lower capital category, if it determines that the bank is in an unsafe or
unsound condition or deems the bank to be engaged in an unsafe or unsound
practice and not to have corrected the deficiency. As of December 31, 1994, each
of the Corporation's subsidiary banks met the definition of a "well capitalized"
institution.
"Undercapitalized" depository institutions, among other things, are subject
to growth limitations, are prohibited, with certain exceptions, from making
capital distributions, are limited in their ability to obtain funding from a
Federal Reserve Bank and are required to submit a capital restoration plan. The
federal banking agencies may not accept a capital plan without determining,
among other things, that the plan is based on realistic assumptions and is
likely to succeed in restoring the depository institution's capital. In
addition, for a capital restoration plan to be acceptable, the depository
institution's parent holding company must guarantee that the institution will
comply with such capital restoration plan and provide appropriate assurances of
performance. If a depository institution fails to submit an acceptable plan,
including if the holding company refuses or is unable to make the guarantee
described in the previous sentence, it is treated as if it is "significantly
undercapitalized." Failure to submit or implement an acceptable capital plan
also is grounds for the appointment of a conservator or a receiver.
"Significantly undercapitalized" depository institutions may be subject to a
number of additional requirements and restrictions, including orders to sell
sufficient voting stock to become adequately capitalized, requirements to reduce
total assets and cessation of receipt of deposits from correspondent banks.
"Critically undercapitalized" institutions, among other things, are prohibited
from making any payments of principal and interest on subordinated debt, and are
subject to the appointment of a receiver or conservator.
Under FDICIA, the FDIC is permitted to provide financial assistance to an
insured bank before appointment of a conservator or receiver only if (i) such
assistance would be the least costly method of meeting the FDIC's insurance
obligations, (ii) grounds for appointment of a conservator or a receiver exist
or are likely to exist, (iii) it is unlikely that the bank can meet all capital
standards without assistance and (iv) the bank's management has been competent,
has complied with applicable laws, regulations, rules and supervisory directives
and has not engaged in any insider dealing, speculative practice or other
abusive activity.
FDICIA directs, among other things, that each federal banking agency
prescribe standards for depository institutions and depository institution
holding companies relating to internal controls, information systems, internal
audit systems, loan documentation, credit underwriting, interest rate exposure,
asset growth, compensation, a maximum ratio of classified assets to capital,
minimum earnings sufficient to absorb losses, a minimum ratio of market value to
book value for publicly traded shares and other standards as they deem
appropriate. The federal banking agencies have issued notices of proposed
rulemakings, soliciting comments on the implementations of all of these FDICIA
provisions.
FDICIA also contains a variety of other provisions that may affect the
operations of the Corporation including new reporting requirements, regulatory
standards for real estate lending, "truth in savings" provisions, and the
requirement that a depository institution give 90 days prior notice to customers
and regulatory authorities before closing any branch. FDICIA also contains a
prohibition on the acceptance or renewal of brokered deposits by depository
institutions that are not "well capitalized" or are "adequately capitalized" and
have not received a waiver from the FDIC.
FDICIA provides the federal banking agencies with significantly expanded
powers to take enforcement action against institutions which fail to comply with
capital or other standards. Such action may include the termination of deposit
insurance by the FDIC or the appointment of a receiver or conservator for the
institution.
-6-
<PAGE>
The foregoing necessarily is a general description of certain provisions of
FDICIA and does not purport to be complete. The provisions of FDICIA are
implemented through regulations issued by the various federal banking agencies.
Those regulations were adopted in final form in 1994. The effect of FDICIA on
the Corporation is not yet fully ascertainable.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Offered Debt Securities.
The Senior Securities will be issued under an Indenture (the "Senior
Indenture"), dated as of February ___, 1995, as amended or supplemented from
time to time, between the Corporation and The First National Bank of Chicago, as
Trustee (the "Senior Debt Trustee"). The Subordinated Securities will be issued
under an Indenture (the "Subordinated Indenture"), dated as of February ___,
1995, as amended or supplemented from time to time, between the Corporation and
Chemical Bank, as Trustee (the "Subordinated Debt Trustee"). A copy of the
Senior Indenture and the Subordinated Indenture, along with any amendments or
supplements, (collectively, the "Indentures") are filed as exhibits to the
Registration Statement. The following summaries of the Debt Securities and the
Indentures do not purport to be complete and are subject to in all respects, and
qualified in their entirety by reference to, all the provisions of the Indenture
applicable to a particular series of Debt Securities (the "Applicable
Indenture"), including the applicable definitions therein of certain capitalized
terms used in this Prospectus.
GENERAL
The Debt Securities will be unsecured obligations of the Corporation. The
Indentures do not limit the amount of Debt Securities that may be issued
thereunder and provide that Debt Securities may be issued thereunder from time
to time in one or more series.
Neither Indenture contains any restriction on the Corporation's ability to
enter into a highly leveraged transaction or any provision affording special
protection to holders of Debt Securities in the event the Corporation engages in
a highly leveraged transaction. Further, neither Indenture contains any
provisions that would provide protection to holders of Debt Securities upon a
sudden and dramatic decline in the credit quality of the Corporation resulting
from a takeover, recapitalization or similar restructuring of the Corporation.
The applicable Prospectus Supplement will describe the terms of the Offered
Debt Securities, including, when applicable: (1) the title of the Offered Debt
Securities; (2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the date or dates on which the Offered Debt Securities may be
issued and are or will be payable; (4) the rate or rates per annum (which may be
fixed or variable) at which the Offered Debt Securities will bear interest, if
any, or the method by which such rate or rates shall be determined, and the date
or dates from which such interest, if any, will accrue; (5) the date or dates on
which such interest, if any, on the Offered Debt Securities will be payable and
the Regular Record Dates for any such Interest Payment Dates, and the extent to
which, or the manner in which, any interest payable on a temporary or permanent
global Debt Security ("Global Notes") on an Interest Payment Date will be paid
if other than in the manner described under "Global Notes" below; (6) each
office or agency where, subject to the terms of the relevant Indenture as
described below under "Payment and Paying Agents," the principal, premium, if
any, and interest on the Offered Debt Securities will be payable and each office
or agency where, subject to the terms of the relevant Indenture as described
below under "Denominations, Registration and Transfer," the Offered Debt
Securities may be presented for registration of transfer or exchange and, if
applicable, conversion; (7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which the Offered Debt
Securities may be redeemed at the option of the Corporation; (8) the obligation,
if any, of the Corporation to redeem, repay or purchase the Offered Debt
Securities 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 the Offered Debt Securities
will be redeemed, repaid or purchased pursuant to any such obligation;
(9) whether the Offered Debt Securities are to be issued with original issue
discount within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder and the amount of
such discount; (10) provisions, if any, for the defeasance of the Offered Debt
Securities; (11) whether the Offered Debt Securities are to be issued as
Registered Securities or Bearer Securities, or both, and if Bearer Securities
are issued, whether Coupons will be attached thereto, whether Bearer Securities
may be exchanged for Registered Securities and the circumstances and places for
such exchange, if permitted, and any United States tax consequences to foreign
investors in Offered Debt Securities; (12) whether the Offered Debt Securities
are to be issued in whole or in part in the form of one or more temporary or
permanent Global Notes in registered or bearer form and, if so, the identity of
the depositary, if any, for such Global Note or Notes; (13) any provisions for
payment of additional amounts for taxes, and any provisions for redemption, in
the
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event the Corporation must comply with reporting requirements in respect of an
Offered Debt Security other than a Floating Rate Security ("Affected Security")
or must pay such additional amounts in respect of any Offered Debt Security;
(14) if other than U.S. Dollars, the Foreign Currency or Currencies in which the
Debt Securities may be denominated and the principal, premium, if any, and
interest on the Offered Debt Securities that shall or may be paid and, if
applicable, whether at the election of the Corporation and/or the Holder, the
conditions and manner of determining the exchange rate or rates; (15) any index
used to determine the amount of payment of principal, premium, if any, and
interest on the Offered Debt Securities; (16) the applicable Overdue Rate, if
any; (17) any addition to, or modification or deletion of, any Events of Default
or covenants provided for with respect to the Offered Debt Securities; (18) the
priority of payment of such Offered Debt Securities; (19) whether the Offered
Debt Securities are convertible into Common Stock and, if so, the terms and
conditions upon which such conversion will be effected, including the initial
conversion price or conversion rate, the conversion period and other conversion
provisions in addition or in lieu of those described herein; (20) whether the
Offered Debt Securities will be Senior Securities or Subordinated Securities
and, if Subordinated Securities, the applicable subordination provisions; and
(21) any other terms and provisions of the Offered Debt Securities which are not
inconsistent with the relevant Indenture. Any such Prospectus Supplement will
also describe any special provisions for the payment of additional amounts with
respect to the Offered Debt Securities and terms relevant to Offered Debt
Securities denominated in a Currency other than U.S. Dollars.
Debt Securities may be issued as Discount Securities to be sold at a
substantial discount below their principal amount. "Discount Securities" mean
any Debt Securities issued with "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder. Special United
States income tax and other considerations applicable to Discount Securities
will be described in the applicable Prospectus Supplement relating thereto.
Discount Securities may provide for the declaration of acceleration of the
Maturity of an amount less than the principal amount thereof upon the occurrence
of an Event of Default and the continuation thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER
Each Debt Security may be denominated in U.S. Dollars or in other
currencies, ECUs or other composite currencies (the "Specified Currency"), all
as set forth in an applicable Prospectus Supplement. See "Currency Risks."
Debt Securities of a series may be issuable as Registered Securities, as
Bearer Securities with or without Coupons attached or as both Registered
Securities and Bearer Securities. Debt Securities of a series may be issuable in
whole or in part in the form of one or more Global Notes, as described below
under "Global Notes." Unless otherwise provided in an applicable Prospectus
Supplement with respect to a series of Debt Securities, the Debt Securities will
be issuable as Registered Securities without Coupons and in denominations (i) if
denominated in U.S. Dollars, of $1,000 or any integral multiple thereof, or
(ii) if denominated in a Specified Currency other than U.S. Dollars, as set
forth in the applicable Prospectus Supplement. One or more Global Notes may be
issued in a denomination or aggregate denominations equal to the aggregate
principal amount of Outstanding Debt Securities of the series to be represented
by such Global Note or Notes.
In connection with the sale during the "restricted period" (referred to
under "Limitations on Issuance of Bearer Securities"), no Bearer Security may be
mailed or otherwise delivered to any location in the United States (as defined
under "Limitations on Issuance of Bearer Securities") and any such Bearer
Security (other than a temporary Global Note in bearer form) may be delivered
only if the Person entitled to receive such Bearer Security furnishes written
certification, in the form required by the applicable Indenture, to the effect
that such Bearer Security is not being acquired by or on behalf of a U.S. Person
(as defined under "Limitations on Issuance of Bearer Securities"), or, if a
beneficial interest in such Bearer Security is being acquired by or on behalf of
a U.S. Person, that such U.S. Person (i) acquired and holds such Bearer Security
through a foreign branch of a financial institution, (ii) is a financial
institution purchasing for its own account and, in either case (i) or (ii), the
financial institution agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder or
(iii) is a financial institution purchasing for resale during the restricted
period only to non-U.S. Persons outside the United States. See "Global Notes -
Bearer Debt Securities" and "Limitations on Issuance of Bearer Securities."
Registered Securities of any series (other than a Global Note) will be
exchangeable for other Registered Securities of the same series and of a like
aggregate principal amount and tenor of different authorized denominations. In
addition, if so provided in an applicable Prospectus Supplement, Bearer
Securities of any series which are registrable as to principal and interest may,
at the option of the Holder and subject to the terms of the applicable
Indenture, be exchangeable for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor. Any
Bearer Security surrendered for exchange shall be surrendered with all unmatured
Coupons and all matured Coupons in default except that any Bearer Security
surrendered in exchange for a Registered Security between a Regular Record Date
or a Special Record Date and the relevant date for payment of interest shall be
surrendered without the Coupon relating to such Interest Payment Date and
interest will not be payable in respect of the Registered
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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 terms of the
Applicable Indenture. Except as provided in an applicable Prospectus Supplement,
Bearer Securities will not be issued in exchange for Registered Securities.
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than Global Notes) may be presented for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the office of the Security Registrar or co-Security Registrar
designated by the Corporation for such purpose with respect to any series of
Debt Securities and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the Applicable Indenture. Such transfer or exchange will be
effected upon the Security Registrar or co-Security Registrar being satisfied
with the documents of title and identity of the person making the request. The
Corporation has appointed the Senior Debt Trustee and the Subordinated Debt
Trustee (the Senior Debt Trustee and the Subordinated Debt Trustee are herein
collectively referred to as the "Trustees") as Security Registrars in respect of
Debt Securities issued under the Senior Indenture and the Subordinated
Indenture, respectively; provided, however, that the Corporation may appoint co-
Security Registrars.
CURRENCY RISKS
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets, the imposition or
modification of foreign exchange controls and potential illiquidity in the
secondary market. These risks will vary depending upon the Currency or
Currencies involved and will be more fully described in the applicable
Prospectus Supplement.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal, premium, if any, and interest on Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
Paying Agents outside the United States as the Corporation may designate from
time to time. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of interest on Bearer Securities on any Interest Payment Date will be
made only against surrender of the Coupon relating to such Interest Payment
Date. No payment of interest on a Bearer Security will be made unless on the
earlier of the date of the first such payment by the Corporation or the date of
delivery by the Corporation of a definitive Bearer Security, including a
permanent Global Note, a written certificate, in the form and to the effect
described above under "Denomination, Registration and Transfer," is provided to
the Corporation. No payment with respect to any Bearer Security will be made at
any office or agency of the Corporation in the United States or by check mailed
to any address in the United States or by transfer to an account maintained in
the United States. Payments will not be made in respect of Bearer Securities or
Coupons pursuant to presentation to the Corporation or its designated Paying
Agents within the United States or the making of any other demand for payment to
the Corporation or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payment of principal, premium, if any, and
interest on Bearer Securities denominated and payable in U.S. Dollars, at the
direction of the Holder thereof, will be made at the office of the Corporation's
Paying Agent in The City of New York if (but only if) payment of the full amount
thereof in U.S. Dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal, premium, if any, and interest on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Corporation may
designate from time to time, except that at the option of the Corporation
payment of any interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled thereto.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
any installment of interest on Registered Securities will be made to the Person
in whose name such Registered Security is registered at the close of business on
the Regular Record Date for such interest.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Senior Debt Trustee will act as the Corporation's sole Paying Agent through its
principal office in New York, New York, and the Subordinated Debt Trustee will
act as the Corporation's sole Paying Agent through its principal office in New
York, New York, with respect to offered Debt Securities which are issuable
solely as Registered Securities. Any Paying Agents outside the United States and
other Paying Agents in the United States initially designated by the Corporation
for the Offered Debt Securities will be named in an applicable Prospectus
Supplement. The Corporation may at any time designate additional Paying Agents
or rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities of a series
are issuable only as Registered Securities, the Corporation will be required to
maintain a paying Agent in each Place of Payment for such series and, if Debt
Securities of a series may be issuable as Bearer Securities, the Corporation
will be required to maintain (i) a Paying Agent in the Borough of Manhattan, The
City of New York,
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for payments with respect to any Registered Securities of the series (and for
payments with respect to Bearer Securities of the series in the circumstances
described above, but not otherwise), and (ii) a Paying Agent in a Place of
Payment located outside the United States where Debt Securities of such series
and any Coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Corporation will maintain a
Paying Agent in London or Luxembourg or any other required city located outside
the United States, as the case may be, for the Debt Securities of such series.
All moneys paid by the Corporation to the Trustees or a Paying Agent for
the payment of principal, premium, if any, and interest on any Debt Security
which remain unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to the Corporation and
the Holder of such Debt Security or any Coupon will thereafter look only to the
Corporation for payment thereof.
GLOBAL NOTES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of a
depositary located in the United States (a "U.S. Depositary") or a common
depositary located outside the United States (a "Common Depositary") identified
in the Prospectus Supplement relating to such series. Global Notes may be issued
in either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to any
Offered Debt Securities of a series will be described in the Prospectus
Supplement relating to such series. The Corporation anticipates that the
following provisions will apply to all depositary arrangements.
BOOK-ENTRY DEBT SECURITIES
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Note to be deposited with or
on behalf of a U.S. Depositary will be represented by a Global Note registered
in the name of such depositary or its nominee. Upon the issuance of a Global
Note in registered form, the U.S. Depositary for such Global Note will credit,
on its book-entry registration and transfer system, the respective principal
amounts of the Debt Securities represented by such Global Note to the accounts
of institutions that have accounts with such depositary or its nominee
("Participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the Corporation, if such
Debt Securities are offered and sold directly by the Corporation. Ownership of
beneficial interests in such Global Notes will be limited to Participants or
persons that may hold interests through Participants. Ownership of beneficial
interests by Participants in such Global Notes will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the U.S. Depositary or its nominee for such Global Note. Ownership
of beneficial interests in Global Notes by persons holding through Participants
will be shown on, and the transfer of that ownership interest within such
Participant will be effected only through, records maintained by such
Participant. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Note.
So long as the U.S. Depositary for a Global Note in registered form, or its
nominee, is the registered owner of such Global Note, such depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Debt Securities represented by such Global Note for all purposes under the
Indenture governing such Debt Securities. Except as set forth below, owners of
beneficial interests in such Global Notes will not be entitled to have Debt
Securities of the series represented by such Global Note registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or Holders thereof under the Applicable Indenture.
Payment of principal, premium, if any, and interest on Debt Securities
registered in the name of or held by a U.S. Depositary or its nominee will be
made to the U.S. Depositary or its nominee, as the case may be, as the
registered owner or Holder of the Global Note representing such Debt Securities.
Neither the Corporation, the Trustees, any Paying Agent nor the Security
Registrar for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Note for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Corporation expects that the U.S. Depositary for Debt Securities of a
series, upon receipt of any payment of principal, premium or interest in respect
of a permanent Global Note, will credit immediately Participants' accounts with
payments in amounts
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proportionate to their respective beneficial interests in the principal amount
of such Global Note as shown on the records of such depositary. The Corporation
also expects that payments by Participants to owners of beneficial interests in
such Global Note held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participants.
A Global Note may not be transferred except as a whole by the U.S.
Depositary for such Global Note to or among a nominee or a successor. If a U.S.
Depositary for Debt Securities of a series is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by the
Corporation within ninety days or if any event shall have occurred and be
continuing which, after notice or lapse of time, or both, would become an Event
of Default with respect to the Debt Securities, the Corporation will issue Debt
Securities in definitive registered form in exchange for the Global Note or
Global Notes representing such Debt Securities. In addition, the Corporation may
at any time and in its sole discretion determine not to have any Debt Securities
in registered form represented by one or more Global Notes and, in such event,
will issue Debt Securities in definitive form in exchange for the Global Note or
Global Notes representing such Debt Securities. Further, if the Corporation so
specifies with respect to Debt Securities of a series, an owner of a beneficial
interest in a Global Note representing Debt Securities of such series may, on
terms acceptable to the Corporation and the U.S. Depositary, receive individual
Debt Securities of such series in exchange for such beneficial interests,
subject to any limitations in the Prospectus Supplement relating to such Offered
Debt Securities. In any such instance, an owner of a beneficial interest in a
Global Note will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Note equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name.
BEARER DEBT SECURITIES
Unless otherwise specified in an applicable Prospectus Supplement, all
Bearer Securities of a series will be initially issued in the form of a single
temporary Global Note, to be deposited with a Common Depositary in London for
Morgan Guaranty Trust Corporation of New York, Brussels Office, as operator of
the Euro-clear System ("Euro-clear Operator") or CEDEL, S.A. ("CEDEL") for
credit to the designated accounts. Commencing 40 days after the issue date of a
temporary Global Note, the Debt Securities represented by such temporary Global
Note will be exchangeable for definitive Debt Securities or for interests in a
permanent Global Note in definitive form, without interest Coupons, representing
Debt Securities having the same interest rate and Stated Maturity, but in each
such case only upon written certification in the form and to the effect
described above under "Denominations, Registration and Transfer." The beneficial
owner of a Debt Security represented by a temporary Global Note or a permanent
Global Note in definitive form, on or after the applicable exchange date and
upon 30 days' notice to the relevant Trustee given through the Euro-clear
Operator or CEDEL, may exchange its interest for definitive Bearer Securities or
definitive Registered Securities of any authorized denomination. No Bearer
Security delivered in exchange for a portion of a temporary Global Note or a
permanent Global Note in definitive form shall be mailed or otherwise delivered
to any location in the United States in connection with such exchange.
Unless otherwise specified in an applicable Prospectus Supplement, interest
in respect of any portion of a temporary Global Note payable in respect of an
Interest Payment Date occurring prior to the date on which Debt Securities
represented by such temporary Global Note are exchangeable for definitive Debt
Securities or for interests in a permanent Global Note in definitive form will
be paid to each of the Euro-clear Operator and CEDEL with respect to the portion
of the temporary Global Note held for its account. Each of the Euro-clear
Operator and CEDEL will undertake in such circumstances to credit such interest
received by it in respect of a temporary Global Note to the respective accounts
for which it holds such temporary Global Note only upon receipt in each case of
written certification in the form and to the effect described above under
"Denominations, Registration and Transfer."
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered or sold during the restricted period (as defined
in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations -
generally, the first 40 days after the closing date and, with respect to unsold
allotments, until sold), or delivered in connection with a sale during the
restricted period, directly or indirectly, in the United States or to U.S.
Persons other than to foreign branches of United States financial institutions
(as defined in United States Treasury regulations Section 1.165-12(c)(1)(v))
purchasing for their own account or for resale during the restricted period
which institutions agree in writing to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code, and the regulations thereunder. A sale of
Bearer Securities may be made during the restricted period to a U.S. Person who
acquired and holds the Bearer Security through a foreign branch of the United
States financial institution that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder. Any
underwriters, agents and dealers participating in the offering of Debt
Securities, directly or indirectly, must agree that they will not offer or sell,
directly or indirectly, any Bearer Securities in the United States or to U.S.
Persons (other than the financial institutions described above).
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Bearer Securities (other than temporary global securities) and any Coupons
which may be detached therefrom will bear a legend substantially to the
following effect:
"Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the Internal
Revenue Code."
The sections referred to in such legend provide that a U.S. Person (other than a
United States financial institution described above or a U.S. Person holding
through such a financial institution) who holds Bearer Securities or Coupons
appertaining thereto will not be allowed to deduct any loss realized on Bearer
Securities and any gain (which might otherwise be characterized as capital gain)
recognized on any sale or disposition (including the receipt of principal) of
such Bearer Securities will be treated as ordinary income.
As used herein: "U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States and an estate or trust the income of which
is subject to United States federal income taxation regardless of its source;
"United States" means the United States of America (including the States and the
District of Columbia); and the United States' "possessions" include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
Purchasers of Bearer Securities may also be affected by certain limitations
under United States tax laws which will be described in an applicable Prospectus
Supplement.
LIMITATIONS ON THE CORPORATION AND CERTAIN SUBSIDIARIES
RESTRICTION ON SALE OR ISSUANCE OF CAPITAL STOCK OF MAJOR CONSTITUENT BANKS
The Senior Indenture prohibits the issuance, sale or other disposition of
shares of, or securities convertible into, or options or warrants or rights to
subscribe for or purchase shares of, Voting Stock of a Major Constituent Bank,
the merger or consolidation of any Major Constituent Bank with or into any other
corporation, and the sale or other disposition of all or substantially all of
the assets of any Major Constituent Bank, if after giving effect to any such
transaction and to the issuance of the maximum number of shares of Voting Stock
issuable upon the conversion of all such convertible securities, the Corporation
would own, directly or indirectly, 80 percent or less of the shares of Voting
Stock of such Major Constituent Bank, its successor in merger or consolidation,
or the person that acquires all or substantially all of its assets, except that
the covenant will not prohibit sales or dispositions of Voting Stock: (i) made
in compliance with an order of a court or regulatory authority of competent
jurisdiction or made as a condition imposed by such court or authority to the
acquisition by the Corporation, directly or indirectly, of any other corporation
or entity; or (ii) when the proceeds of such sale are, within a reasonable
period of time, invested pursuant to an understanding or agreement in principle
reached at the time of such sale, assignment or disposition, in a Controlled
Subsidiary (including any Person which upon such an investment becomes a
Controlled Subsidiary) engaged in a banking business or any other business
legally permissible for bank holding companies. "Major Constituent Bank" means
any Banking Subsidiary of the Corporation whose Consolidated Banking Assets
constitute 10 percent or more of the Corporation's Consolidated Banking Assets.
As of December 31, 1994, the Corporation had two Major Constituent Banks,
Barnett Bank of South Florida, N.A. and Barnett Bank of Broward County, N.A.,
whose Consolidated Banking Assets each constituted approximately 12 percent of
the Corporation's Consolidated Banking Assets on such date. "Controlled
Subsidiary" means a subsidiary more than 80 percent of the outstanding shares of
voting stock of which is at the time owned directly or indirectly by the
Corporation or by one or more Controlled Subsidiaries or by the Corporation and
one or more Controlled Subsidiaries.
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RESTRICTION ON LIENS ON VOTING STOCK OF MAJOR CONSTITUENT BANKS
The Corporation covenants in the Senior Indenture that it will not create,
assume, incur or suffer to exist any pledge, encumbrance or lien, as security
for indebtedness for borrowed money, upon any shares of Voting Stock of any
Major Constituent Bank owned by the Corporation, directly or indirectly, if,
treating such pledge, encumbrance or lien as a transfer of the shares of Voting
Stock to the secured party, the Corporation would own, directly or indirectly,
80 percent or less of the shares of Voting Stock of such Major Constituent Bank.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the
Corporation and will rank PARI PASSU with all outstanding senior indebtedness of
the Corporation.
EVENTS OF DEFAULT
The following are Events of Default under the Senior Indenture with respect
to Senior Securities of any series: (1) failure to pay principal of or any
premium on any Senior Security of that series when due; (2) failure to pay any
interest on any Senior Security of that series when due, continued for 30 days;
(3) failure to deposit any sinking fund payment in respect of any Senior
Security of that series when due; (4) failure, subject to waiver, to observe and
perform the covenants referred to above under "Limitations on the Corporation
and Certain Subsidiaries;" (5) failure to perform any other covenant of the
Corporation in the Senior Indenture (other than a covenant included in such
Indenture solely for the benefit of a series of Debt Securities other than that
series), continued for 90 days after written notice as provided in such
Indenture; (6) certain events involving bankruptcy, insolvency or reorganization
of the Corporation or a Major Constituent Bank; (7) indebtedness for borrowed
money of the Corporation or any Major Constituent Bank in excess of $5,000,000
(whether such indebtedness now exists or is hereafter created) is not paid at
final maturity or becomes or is declared due and payable prior to the date or
dates on which such indebtedness would otherwise have become due and payable as
a result of the occurrence of one or more events of default as defined in any
mortgage, indenture, or instrument under which such indebtedness may have been
issued or by which such indebtedness may have been secured ("acceleration"), and
such failure at final maturity to pay or acceleration or accelerations, as the
case may be, shall not have been rescinded, annulled or cured prior to the
expiration of 30 days after the date such failure to pay at final maturity or
acceleration or accelerations occurred; and (8) any other event of default
provided for with respect to Debt Securities of that series.
If any Event of Default (other than an Event of Default specified in
clause (6) in the preceding paragraph) occurs and is continuing with respect to
Senior Securities of any series at the time outstanding, either the Senior Debt
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series may declare the principal amount (or,
if the Debt Securities of that series are Discount Securities, such portion of
the principal amount as may be specified in the terms of that series) of all the
Debt Securities of that series to be due and payable immediately in the Currency
in which such Senior Securities are denominated. If an Event of Default
specified in clause (6) in the preceding paragraph occurs, such principal amount
shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of such Trustee or any Holder. At any time
after a declaration of acceleration with respect to Senior Securities of any
series has been made, but before a judgment or decree based on acceleration has
been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration.
The Senior Indenture provides that upon the occurrence of an Event of
Default specified in clauses (1), (2) or (3) above, the Corporation will, upon
demand of the Senior Debt Trustee, pay to the Senior Debt Trustee, for the
benefit of the Holder of any such Senior Security, the whole amount then due and
payable on such Senior Securities for principal, premium, if any, and interest.
The Senior Indenture further provides that if the Corporation fails to pay such
amount forthwith upon such demand, the Senior Debt Trustee may, among other
things, institute a judicial proceeding for the collection thereof.
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation and will rank PARI PASSU with all outstanding subordinated
indebtedness of the Corporation.
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SUBORDINATION
The Subordinated Securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Indebtedness (as defined below) of the Corporation. In the event that the
Corporation shall default in the payment of any principal of or interest on any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) will be made or agreed to be made for
principal of or interest on the Subordinated Securities, or in respect of any
redemption, retirement, purchase or other acquisition of any of the Subordinated
Securities, other than a payment made in capital stock of the Corporation (or
cash in lieu of fractional shares thereof) pursuant to any conversion right of
the Subordinated Securities. "Senior Indebtedness" means (i) the principal of
and premium, if any, and interest on all indebtedness of the Corporation for
money borrowed, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, except (x) subordinated
indebtedness issued under the Subordinated Indenture, (y) the Corporation's
existing subordinated indebtedness, and (z) such other indebtedness of the
Corporation as is by its terms expressly stated to be not superior in right of
payment to the Subordinated Securities, or to rank PARI PASSU in right of
payment with the Subordinated Securities, (ii) whether outstanding on the date
of the Subordinated Indenture or thereafter created, assumed or incurred, all
indebtedness of the Corporation for claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than obligations which, by their terms, are
expressly stated (x) to be not superior in right of payment to the Subordinated
Securities or (y) to rank PARI PASSU in right of payment with the Subordinated
Securities and (iii) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness of the Corporation for money borrowed"
means any obligation of, or any obligation guaranteed by, the Corporation for
the repayment of money borrowed, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation for payment of
the purchase price of property or assets. The term "claim" has the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended
and in effect on the date of the Subordinated Indenture.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv) any
other marshalling of the assets of the Corporation, all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will be paid in full before any payment or distribution, whether in
cash, securities or other property, is made on account of the principal of or
interest on the Subordinated Securities. In such event, any payment or
distribution on account of the principal of or interest on the Subordinated
Securities, whether in cash, securities or other property (other than securities
of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
Subordinated Securities, to the payment of all Senior Indebtedness at the time
outstanding, and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities will be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) has been paid in full. If any
payment or distribution on account of the principal of or interest on the
Subordinated Securities of any character or any security, whether in cash,
securities or other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by any Holder of any Subordinated Securities in
contravention of any of the terms of the Subordinated Indenture and before all
the Senior Indebtedness shall have been paid in full, such payment or
distribution or security will be received in trust for the benefit of, and will
be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holders of
Subordinated Securities, together with the holders of any obligations of the
Corporation ranking on a parity with the Subordinated Securities, will be
entitled to be repaid from the remaining assets of the Corporation the amounts
at that time due and owing on account of unpaid principal of or any premium and
interest on the Subordinated Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or obligations of the Corporation ranking
junior to the Subordinated Securities and such other obligations. By reason of
such subordination, in the event of the insolvency of the Corporation, holders
of Senior Indebtedness may receive more, ratably, and Holders of the
Subordinated Securities having a claim pursuant to such Subordinated Securities
may receive less, ratably, than the other creditors of the Corporation. Such
subordination will
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not prevent the occurrence of an Event of Default in respect of the Subordinated
Securities. See "Events of Default and Limited Rights of Acceleration" for
limitations on the right of acceleration.
EVENTS OF DEFAULT AND LIMITED RIGHTS OF ACCELERATION
The Subordinated Indenture defines an Event of Default as being certain
events involving the bankruptcy, insolvency or reorganization of the Corporation
and, if specified in the resolution adopted by the Board of Directors of the
Corporation with respect to a series, certain other events. If an Event of
Default occurs and is continuing, either the Trustee or the Holders of at least
25% in aggregate principal amount of the outstanding Subordinated Securities of
that series (or, if the Subordinated Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of the series) may declare the principal amount of all the Subordinated
Securities of that series to be due and payable immediately in the Currency in
which such Subordinated Securities are denominated. The foregoing provision
would be subject as to enforcement to the broad equity powers of a federal
bankruptcy court and to the determination by that court of the nature of the
rights of the Holders of the Subordinated Securities. At any time after a
declaration of acceleration with respect to the Subordinated Securities has been
made, but before a judgment or decree based on acceleration has been obtained,
the Holders of a majority in aggregate principal amount of outstanding
Subordinated Securities may, under certain circumstances, rescind and annul such
acceleration.
Unless otherwise provided in the terms of a series of Subordinated
Securities, there will be no right of acceleration of the payment of principal
of the Subordinated Securities of such series upon a default in the payment of
principal or interest or a default in the performance of any covenant or
agreement in the Subordinated Securities or the Subordinated Indenture. In the
event of a default in the payment of interest or principal or the performance of
any covenant or agreement in the Subordinated Securities or the Subordinated
Indenture, the Trustee may, subject to certain limitations, seek to enforce
payment of such interest or principal or the performance of such covenant or
agreement.
CONVERSION
The Offered Debt Securities may, if so provided in the applicable
Prospectus Supplement, provide for a right of conversion of such Offered Debt
Securities into Common Stock (or cash in lieu of fractional shares). The
following provisions will apply to Debt Securities that are convertible Debt
Securities unless otherwise provided in the Prospectus Supplement for such Debt
Securities.
The holder of any convertible Debt Securities will have the right
exercisable at any time prior to maturity, unless previously redeemed or
otherwise purchased by the Corporation, to convert such Debt Securities into
shares of Common Stock at the conversion price or conversion rate set forth in
the applicable Prospectus Supplement, subject to adjustment. The holder of
convertible Debt Securities may convert any portion thereof which is $1,000 in
principal amount or any integral multiple thereof.
In certain events, the conversion price or conversion rate will be subject
to adjustment as set forth in the applicable Indenture. Such events include the
issuance of shares of Common Stock as a dividend or distribution on the Common
Stock; subdivisions, combinations and reclassifications of the Common Stock; the
issuance to all holders of Common Stock of rights or warrants entitling the
holders thereof (for a period not exceeding 45 days) to subscribe for or
purchase shares of Common Stock at a price per share less than the then current
market price per share of Common Stock; and the distribution to all holders of
Common Stock of evidences of indebtedness, equity securities (including security
interests in the Corporation's subsidiaries) other than Common Stock or other
assets (excluding cash dividends paid from surplus) or subscription rights or
warrants (other than those referred to above). No adjustment of the conversion
price or conversion rate will be required unless an adjustment would require a
cumulative increase or decrease of at least 1 percent in such price or rate. If
after the Distribution Date for the Preferred Stock Purchase Rights of the
Corporation, as presently constituted (see "Description of Capital Stock -
Rights to Purchase Junior Participating Preferred Stock"), converting Holders of
the convertible Debt Securities are not entitled to receive the Preferred Stock
Purchase Rights which would otherwise be attributable (but for the date of
conversion) to the shares of Common Stock received upon such conversion, then
adjustment of the conversion price shall be made under the foregoing provisions
as if the Preferred Stock Purchase Rights were then being distributed to the
holders of the Common Stock. If such an adjustment is made and the Preferred
Stock Purchase Rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment shall be made to the conversion price, on an
equitable basis, to take account of such event. However, as part of the terms of
the convertible Debt Securities, the Corporation may elect to amend the
provisions presently applicable to the Preferred Stock Purchase Rights so that
each share of Common Stock issuable upon conversion of the convertible Debt
Securities, whether or not issued after the Distribution Date for such Preferred
Stock Purchase Rights, will be accompanied by the Preferred Stock Purchase
Rights which would otherwise be attributable (but for the date of conversion) to
such shares of Common Stock.
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If at any time the Corporation makes a distribution of property to its
shareholders which would be taxable to such shareholders as a dividend for
federal income tax purposes (e.g. distributions of evidences of indebtedness or
assets of the Corporation, but generally not stock dividends or rights to
subscribe to capital stock) and, pursuant to the anti-dilution provisions
described above, the conversion price or conversion rate of the convertible Debt
Securities is reduced, such reduction may be deemed to be the receipt of taxable
income by holders of the convertible Debt Securities.
Fractional shares of Common Stock will not be issued upon conversion, but,
in lieu thereof, the Corporation will pay a cash adjustment based on the then
current market price for the Common Stock. Upon conversion, no adjustments will
be made for accrued interest or on dividends, and therefore convertible Debt
Securities surrendered for conversion between the record date for an interest
payment and the interest payment date (except convertible Debt Securities called
for redemption on a redemption date during such period) must be accompanied by
payment of an amount equal to the interest thereon which the registered holder
is to receive.
In the case of any consolidation or merger of the Corporation with or into
any other Person (with certain exceptions) or any sale or transfer of all or
substantially all the assets of the Corporation, the Holder of convertible Debt
Securities, after the consolidation, merger, sale or transfer, will have the
right to convert such convertible Debt Securities only into the kind and amount
of securities, cash and other property which the Holder would have been entitled
to receive upon such consolidation, merger, sale or transfer if the Holder had
held the Common Stock issuable upon conversion of such convertible Debt
Securities immediately prior to such consolidation, merger, sale or transfer.
MISCELLANEOUS RIGHTS AND OBLIGATIONS OF TRUSTEES
The Indentures provide that, subject to the duty of the Trustees during
default to act with the required standard of care, the respective Trustee will
be under no obligation to exercise any of its rights or powers under the
relevant Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable indemnity. Subject to
such provisions for the indemnification of the Trustees, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the relevant Trustee, or exercising
any trust or power conferred on such Trustee, with respect to the Debt
Securities of that series.
The Corporation is required to furnish the Trustees annually with a
statement as to the performance by the Corporation of certain of its obligations
under the relevant Indentures and as to any default in such performance and to
file with the relevant Trustee written notice of the occurrence of any default
or Event of Default within ten business days of the Corporation becoming aware
of such default or Event of Default.
MODIFICATION AND WAIVER
Modifications of and amendments to an Indenture may be made by the
Corporation and the relevant Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of each
series affected by such modification or amendment voting separately; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby, (1) change the Stated
Maturity of the principal of, or any installment of principal or interest on,
any Debt Security, (2) reduce the principal amount of, or any premium or
interest on, any Debt Security, (3) reduce the amount of principal of Discount
Securities payable upon acceleration of the maturity thereof, (4) change the
currency of payment of principal of, or any premium or interest on, any Debt
Security, (5) adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, (6) reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund or analogous provisions, (7) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security, (8) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of whose Holders is required for
modification or amendment of the relevant Indenture or for waiver of compliance
with certain provisions of such Indenture or for waiver of certain defaults,
(9) limit the obligation of the Corporation to maintain a paying agency outside
the United States for payment on Bearer Securities, (10) limit the obligation of
the Corporation to redeem an Affected Security, (11) impair the rights of any
holders of Securities which are convertible into Common Stock to receive shares
of Common Stock upon the exercise of conversion rights or to institute suit for
the enforcement of such rights or (12) modify certain provisions of the
Indenture which require a minimum percentage in principal amount of Outstanding
Debt Securities to constitute consent of the Holders of such securities.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Corporation with certain covenants of the relevant Indenture
and any Event of Default resulting in acceleration of such Debt Securities in
specified circumstances. The Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of each series may, on behalf of all Holders
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of Debt Securities of that series, waive any past default under the relevant
Indenture with respect to Debt Securities of that series, except a default in
the payment of principal or any premium or interest or in the payment of any
sinking fund or analogous obligation or a covenant or provision that cannot be
modified or amended without the consent of the Holders of each Outstanding Debt
Security affected thereby.
The Corporation may, with the consent of the Trustee, change the terms of
an Indenture through an Indenture Supplement without the consent of any Holders
only for the following purposes: (1) to evidence the succession of another
corporation to the Corporation and the assumption by any such successor of the
covenants of the Corporation under the relevant Indenture; (2) to add to the
covenants of the Corporation for the benefit of the Holders or to surrender any
right or power therein conferred upon the Corporation; (3) to add any additional
Events of Default; (4) to add to or change any of the provisions of the relevant
Indenture to facilitate the issuance of Debt Securities in bearer form; (5) to
change or eliminate any of the relevant Indenture's provisions, provided that
there are no Debt Securities outstanding which are entitled to the benefit of
such provision; (6) to secure the Debt Securities; (7) to supplement any of the
provisions of the relevant Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge of any series of Debt
Securities provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series or any other series
of Debt Securities; (8) to establish the form or terms of the Debt Securities as
permitted by the relevant Indenture; (9) to evidence and provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the Trustee under the relevant Indenture by more than one
Trustee; (10) to make any modifications, amendments or supplements to any
provisions of the relevant Indenture which modifications, amendments or
supplements are required pursuant to any amendment of the Trust Indenture Act of
1939, or any of the rules promulgated thereunder, enacted after the date of the
relevant Indenture; (11) to cure any ambiguity, any defect or any inconsistent
provision, provided such action shall not adversely affect the Holders'
interests in any material respect; and (12) to provide for adjustment of
conversion rights pursuant to the relevant Indenture.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indentures provide that the Corporation may not consolidate with or
merge into any other corporation or transfer its properties and assets
substantially as an entirety to any Person unless (i) the corporation formed by
such consolidation or into which the Corporation is merged or the Person to
which the properties and assets of the Corporation are so transferred shall be a
corporation organized and existing under the laws of the United States, any
State thereof or the District of Columbia and shall expressly assume by
supplemental indenture the payment of the principal of, premium, if any, and
interest on the Debt Securities, and the performance of the other covenants of
the Corporation under the Indentures; (ii) immediately after giving effect to
such transaction, no Event of Default or Default, as applicable, and no event
which, after notice or lapse of time or both, would become an Event of Default
or Default, as applicable, shall have occurred and be continuing; (iii) the
corporation formed by such consolidation or into which the Corporation shall
have been merged or the Person to which such sale, lease, or other disposition
shall have been made shall be a banking institution or a bank holding company
subject to Federal or State authority; and (iv) certain other conditions are met
as are more fully described in the Indentures.
DEFEASANCE
If so specified in the Prospectus Supplement with respect to the Offered
Debt Securities of any series (other than Offered Debt Securities that are
convertible into Common Stock), the Corporation, at its option, (i) will be
discharged from any and all obligations in respect of the Offered Debt
Securities of such series (except for certain obligations to register the
transfer or exchange of Offered Debt Securities of such series, to replace
stolen, lost or mutilated Offered Debt Securities of such series, to maintain
paying agencies and to hold moneys for payment in trust) or (ii) will not be
subject to provisions, if any, of the relevant Indenture concerning limitations
upon the disposition of Voting Stock of Major Constituent Banks, the creation of
liens and the consolidation, merger and sale of assets (whether concerning the
Corporation or a Major Constituent Bank), in each case if the Corporation
deposits with the relevant Trustee, in trust, money or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay all the principal of, premium, if any, and interest on the
Offered Debt Securities of such series on the dates such payments are due in
accordance with the terms of such Offered Debt Securities. To exercise either
option, the Corporation is required, among other things, to deliver to the
relevant Trustee an opinion of counsel to the effect that (a) the Corporation
has received from or there has been published by the United States Internal
Revenue Service a ruling to the effect that the deposit and related defeasance
would not cause the Holders of the Offered Debt Securities of such series to
recognize income, gain or loss for United States income tax purposes and (b) if
the Offered Debt Securities of such series are then listed on any national
securities exchange, such Offered Debt Securities would not be delisted from
such exchange as a result of the exercise of such option. Notwithstanding the
foregoing, no discharge or defeasance described above shall affect the
obligations, if applicable, of the Corporation with respect to the conversion of
Debt Securities of a given series into Common Stock.
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NOTICES
Except as otherwise provided in the Indentures, notices to Holders of
Bearer Securities will be given by publication at least twice in a daily
newspaper in the City of New York and, if Debt Securities of such series are
then listed on the Stock Exchange of the United Kingdom and the Republic of
Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, in a daily
newspaper in London or Luxembourg or any other required city located outside the
United States, as the case may be, or, if not practicable, elsewhere in Europe.
Notices to Holders of Registered Securities will be given by mail to the address
of such Holders as they appear in the Security Register.
GOVERNING LAW
The Indentures, the Debt Securities and the Coupons will be governed by,
and construed in accordance with, the laws of the State of New York. A judgment
for money damages by courts in the United States, including a money judgment
based on an obligation expressed in a Foreign Currency, will ordinarily be
rendered only in U.S. Dollars.
REGARDING THE TRUSTEES
The Corporation and certain subsidiaries from time to time may borrow from
the Trustees, maintain deposit accounts and conduct other banking transactions
with them in the ordinary course of their business.
U.S. FEDERAL TAXATION
The applicable Prospectus Supplement may contain, if relevant, a brief
summary of the relevant United States federal income taxation laws applicable to
the Offered Debt Securities.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions to which any Prospectus Supplement may
relate. Certain terms of a series of the Preferred Stock offered by any
Prospectus Supplement will be described in the Prospectus Supplement relating to
such series of the Preferred Stock. If so indicated in the Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below. The description of certain provisions of the Preferred Stock set forth
below and in any Prospectus Supplement does not purport to be complete and is
subject to and qualified in its entirety by reference to the Certificate of
Designation relating to each series of the Preferred Stock which will be filed
with the Commission at or prior to the time of the issuance of such Preferred
Stock.
GENERAL
Under the Corporation's Amended and Restated Articles of Incorporation, as
amended (the "Articles"), the Board of Directors of the Corporation is
authorized without further shareholder action to provide for the issuance of up
to 20,000,000 shares of Preferred Stock, in one or more series, with such voting
powers, designations, preferences, rights, qualifications, limitations and
restrictions as shall be set forth in resolutions providing for the issue
thereof adopted by the Board of Directors. As of the date of this Prospectus,
the Corporation has three series of Preferred Stock outstanding, which are
described below under "Description of Capital Stock - Preferred Stock."
The Preferred Stock will, when issued, be fully paid and nonassessable. For
each share issued, a sum equal to the par value thereof will be credited to the
Corporation's preferred stock account. Unless otherwise specified in the
Prospectus Supplement relating to a particular series of the Preferred Stock,
each series of the Preferred Stock will rank on a parity in all respects with
the outstanding Preferred Stock of the Corporation and each other series of the
Preferred Stock. See "Description of Capital Stock - Preferred Stock" below.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of the Preferred Stock will be The Bank of New York.
The following statements are brief summaries of certain provisions that
will be contained in the Certificate of Designation authorizing the issuance of
a series of Preferred Stock. These statements do not purport to be complete and
are qualified in their entirety by reference to the Articles and to such
Certificate of Designation, the form of which has been filed as an exhibit to
the Registration
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Statement. The resolutions set forth in the Certificate of Designation will be
adopted by the Board of Directors prior to the issuance of a series of the
Preferred Stock and such Certificate of Designation will be filed with the
Secretary of State of the State of Florida as soon thereafter as reasonably
practicable.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when and as declared by the Board of Directors of the Corporation, out of assets
of the Corporation legally available for payment, cash dividends at such rates
and on such dates as are set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. Dividends may or may not be cumulative as set
forth in the Prospectus Supplement. Each dividend will be payable to holders of
record as they appear on the stock register of the Corporation as of the record
dates fixed by the Board of Directors of the Corporation.
If there shall be outstanding shares of any other series of preferred stock
ranking junior to or on a parity with any series of the Preferred Stock as to
dividends, no dividends shall be declared or paid or set apart for payment on
any such other series for any period unless full cumulative (if applicable)
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on such series
of the Preferred Stock for all dividend payment periods terminating on or prior
to the date of payment of such dividends. If dividends on any series of the
Preferred Stock and on any other series of preferred stock ranking on a parity
as to dividends with such series of the Preferred Stock are in arrears, in
making any dividend payment on account of such arrears, the Corporation shall
make payments ratably upon all outstanding shares of such series of the
Preferred Stock and shares of such other series of preferred stock in proportion
to the respective amounts of dividends in arrears on such series of the
Preferred Stock and on such other series of preferred stock to the date of such
dividend payment. Holders of shares of any series of the Preferred Stock shall
not be entitled to any dividend, whether payable in cash, property or stock, in
excess of full cumulative (if applicable) dividends on such series. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
Unless full cumulative (if applicable) dividends on all outstanding shares
of any series of the Preferred Stock shall have been paid or declared and set
aside for payment for all past dividend payment periods, no dividend (other than
a dividend in common stock or in any other stock ranking junior to such series
of the Preferred Stock as to dividends and upon liquidation) shall be declared
or paid or set aside for payment or other distribution declared or made upon the
Common Stock or upon such other stock, nor shall any Common Stock or any other
stock of the Corporation ranking junior to or on a parity with such series of
the Preferred Stock as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by the Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to such series of the Preferred Stock as to dividends
and upon liquidation).
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, the holders of each series of the Preferred Stock
will be entitled to receive and to be paid out of assets of the Corporation
available for distribution to its shareholders, before any payment or
distribution is made to holders of Common Stock or any other class of stock
ranking junior to such series of the Preferred Stock upon liquidation,
liquidating distributions in an amount per share as set forth in the Prospectus
Supplement relating to such series of the Preferred Stock plus accrued and
unpaid dividends. After payment of the full amount of the liquidating
distribution plus accrued and unpaid dividends to which they are entitled, the
holders of such series of the Preferred Stock will have no right or claim to any
of the remaining assets of the Corporation. If, upon any voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, the
amounts payable with respect to the Preferred Stock of any series and any other
shares of stock of the Corporation ranking as to any such distribution on a
parity with the Preferred Stock of such series are not paid in full, the holders
of the Preferred Stock of such series and of such other shares will share
ratably in any such distribution of assets of the Corporation in proportion to
the full respective distributable amounts to which they are entitled. Neither
the sale of all or substantially all the property or business of the
Corporation, nor the merger or consolidation of the Corporation into or with any
other corporation shall be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, of the Corporation.
REDEMPTION
Any series of the Preferred Stock may be redeemable, in whole or in part,
at the option of the Corporation, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon the terms, at the times and at the
redemption prices set forth in the Prospectus Supplement relating to such
series.
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In the event that full cumulative (if applicable) dividends on any series
of the Preferred Stock have not been paid or declared and set apart for payment,
such series of the Preferred Stock may not be redeemed in part and the
Corporation may not purchase or acquire any shares of such series otherwise than
pursuant to a purchase or exchange offer made on the same terms to all holders
of such series of the Preferred Stock.
VOTING RIGHTS
The Preferred Stock shall have such voting rights as shall be provided in
the Prospectus Supplement.
CONVERSION RIGHTS
The Preferred Stock shall have such conversion rights, if any, as shall be
provided in the Prospectus Supplement.
DESCRIPTION OF CAPITAL STOCK
The following summary does not purport to be complete and is subject to in
all respects, and qualified in its entirety by, the applicable provisions of the
Florida Business Corporation Act, the Articles, including the Certificates of
Designation describing the Series A Preferred Stock, the Series B Preferred
Stock, the Series C Preferred Stock and the Junior Participating Preferred
Stock, the Bylaws of the Corporation (the "Bylaws"), and the Rights Agreement
(as defined below). The Articles, Bylaws and the Rights Agreement are
incorporated by reference in this Prospectus.
GENERAL
The authorized capital stock of the Corporation consists of 200,000,000
shares of Common Stock, par value $2.00 per share, and 20,000,000 shares of
Preferred Stock, par value $.10 per share. As of December 31, 1994, there were
issued and outstanding 96,732,754 shares of Common Stock, 2,000,000 shares of
Series A $4.50 Cumulative Convertible Preferred Stock (the "Series A Preferred
Stock"), 12,289 shares of Series B $2.50 Cumulative Convertible Preferred Stock
(the "Series B Preferred Stock"), and 2,300,000 shares of Series C $4.00
Cumulative Convertible Preferred Stock (the "Series C Preferred Stock"). In
addition, the Corporation has authorized the Junior Participating Preferred
Stock for issuance upon the exercise of certain rights as described below.
Since the Corporation is a holding company, the right of the Corporation,
and hence the right of creditors and shareholders of the Corporation, to
participate in any distribution of assets of any subsidiary upon its liquidation
or reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Corporation
itself as a creditor of the subsidiary may be recognized. The principal source
of the Corporation's revenues is dividends from its subsidiaries. See
"Regulatory Matters - Dividends" for a discussion of restrictions on the
subsidiary banks' ability to pay dividends to the Corporation.
COMMON STOCK
The holders of Common Stock are entitled to receive dividends from funds
legally available therefor when, as, and if declared by the Corporation's Board
of Directors, and are entitled upon liquidation to receive pro rata the net
assets of the Corporation after satisfaction in full of the prior rights of
creditors of the Corporation and holders of any Preferred Stock. The principal
source of funds for payment of dividends by the Corporation is dividends paid by
the Corporation's subsidiaries.
The holders of Common Stock are entitled to one vote for each share held on
all matters as to which shareholders are entitled to vote. The holders of Common
Stock do not have cumulative voting rights, any preferential, subscriptive or
preemptive rights with respect to any securities of the Corporation, or any
conversion rights. The Common Stock is not subject to redemption. The
outstanding shares of Common Stock are fully paid and nonassessable.
The Articles were amended in April 1985 to add a "fair price provision"
that would require the vote of the holders of at least 80 percent of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in an election of directors (the "Voting Stock") for
approval of certain business combinations, including certain mergers, asset
sales, security issuances, recapitalizations and liquidations, involving the
Corporation or its subsidiaries and certain acquiring persons (namely a person,
entity or specified group which beneficially owns more than 10 percent of the
Voting Stock), unless the "fair price" and other procedural requirements of the
amendment are met, or unless approved by a majority of directors who are not
affiliated with the acquiring party. At the same time, the Articles were amended
(and conforming amendments were made to the Bylaws) (i) to provide for
classification of the Corporation's Board of Directors into three classes,
(ii) to require the vote of 80 percent of the directors then in office to fill
any
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vacancies in the Corporation's Board of Directors and any newly created
directorships and (iii) to permit the removal of directors only for cause and
only by the affirmative vote of holders of 80 percent of the Voting Stock. Each
of the foregoing provisions may only be amended or repealed by the affirmative
vote of the holders of 80 percent of the Voting Stock. Furthermore, the Articles
require the affirmative vote of at least a majority of the Voting Stock in order
to authorize the Corporation to directly or indirectly acquire the equity
securities of a person who has owned five percent of the class of securities
being acquired for a period of less than two years. The Voting Stock
beneficially owned by such a five percent holder is excluded from such vote. The
affirmative vote is not necessary if the acquisition of such person's securities
is part of a tender or exchange offer made by the Corporation on the same terms
to all holders of such securities.
The Bank of New York is the transfer agent and registrar for the Common
Stock.
RIGHTS TO PURCHASE JUNIOR PARTICIPATING PREFERRED STOCK
On February 21, 1990, the Corporation's Board of Directors declared a
dividend distribution of one right (a "Right") for each outstanding share of
Common Stock to shareholders of record at the close of business on March 12,
1990. The Corporation's Board of Directors declared such dividend distribution
in the belief that it was desirable and in the best interests of the Corporation
and its shareholders that steps be taken to preserve for the Corporation's
shareholders the long-term value of the Corporation in the event of a potential
takeover or other action which appears to the Corporation's Board of Directors
to be coercive, unfair or inadequate. Each Right entitles the registered holder
to purchase from the Corporation a unit consisting of one one-hundredth of a
share (a "Unit") of Junior Participating Preferred Stock at a purchase price of
$125.00 per Unit, subject to adjustment. The description and terms of the Rights
are summarized below and are set forth in a Rights Agreement (the "Rights
Agreement"), between the Corporation and The Bank of New York, as Rights Agent
(the "Rights Agent"). As long as the Rights are attached to the Common Stock and
in certain other circumstances specified in the Rights Agreement, one Right (as
such number may be adjusted pursuant to the provisions of the Rights Agreement)
shall be deemed to be delivered with each share of Common Stock issued or
transferred by the Corporation in the future. The following summaries do not
purport to be complete and are subject to in all respects, and qualified in
their entirety by, reference to all the provisions of the Rights Agreement,
including the definitions therein of certain terms used in this Prospectus.
Initially, the Rights are attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of the close of business on the
tenth day following (i) a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired beneficial
ownership of 20 percent or more of the outstanding shares of Common Stock or
voting securities representing 20 percent or more of the voting power of the
Corporation, (ii) the commencement of a tender offer or exchange offer that
would result in a person or group beneficially owning 20 percent or more of such
outstanding shares of Common Stock or such voting power of the Corporation then
outstanding or (iii) the determination by a majority of the members of the
Corporation's Board of Directors who are not officers of the Corporation, that
with respect to any person who, alone or with affiliates or associates, has
become the beneficial owner of 10 percent or more of the outstanding shares of
Common Stock or voting power of the Corporation then outstanding, (a) such
beneficial ownership is intended to cause the Corporation to provide such person
with short-term financial gain by repurchasing his Common Stock or voting power
under circumstances where such directors of the Corporation determine that such
repurchase would not be in the best long-term interests of the Corporation or
(b) such beneficial ownership is causing or reasonably likely to cause a
material adverse impact on the business or certain business prospects or
relationships of the Corporation. (Any person whose beneficial ownership
satisfies the conditions of (a) or (b) above is referred to herein and in the
Rights Agreement as an "Adverse Person.")
Until the Distribution Date, the Rights will be transferred only with
Common Stock certificates. The Corporation is not required to issue fractions of
shares of Junior Participating Preferred Stock or Common Stock upon exercise of
the Rights.
The Rights are not exercisable until after the Distribution Date and will
expire at the close of business on March 11, 2000, unless earlier redeemed by
the Corporation in accordance with the Rights Agreement.
In the event that (i) a person becomes the beneficial owner of 20 percent
or more of the shares of Common Stock or voting power of the Corporation then
outstanding (except pursuant to an offer for all outstanding shares of Common
Stock and all other voting securities which the independent and disinterested
directors of the Corporation determine to be fair to and otherwise in the best
interests of the Corporation and its shareholders) or (ii) any person is
declared to be an Adverse Person (either (i) or (ii) being a "Flip-in Event"),
each holder of a Right (with the exception of an Adverse or Acquiring Person)
will thereafter have the right to receive, upon exercise, Common Stock having a
value equal to two times the exercise price of the Right. However, Rights are
not exercisable following the occurrence of a Flip-in Event until such time as
the Rights are no longer redeemable by the Corporation as set forth below.
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In the event of certain business combinations involving the Corporation,
each holder of a Right may receive, upon exercise, common stock of the acquiring
company having a value equal to two times the exercise price of the Right. These
certain business combinations involving the Corporation and the Flip-in Events
are referred to together as the "Triggering Events."
The purchase price payable and the number of Units of Junior Participating
Preferred Stock or other securities or property issuable upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution that
would result from certain forms of distributions to holders of such Junior
Participating Preferred Stock.
At any time until the earlier of (i) the close of business on the tenth day
following the public announcement by the Corporation or an Acquiring Person that
the Acquiring Person has become such, (ii) the declaration by the Corporation's
Board of Directors that a person is an Adverse Person, or (iii) March 11, 2000,
the Corporation may redeem the Rights in whole, but not in part, at a price of
$.01 per Right. At any time after the occurrence of a Flip-in Event, the
Corporation's Board of Directors may exchange the Rights (other than Rights
owned by an Acquiring Person or an Adverse Person) in whole or in part, at an
exchange ratio of one share of Common Stock, or equivalent equity security, per
Right.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Corporation, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights will
not be taxable to shareholders of the Corporation or to the Corporation,
shareholders may, depending upon the circumstances, recognize taxable income in
the event that the Rights become exercisable for Common Stock (or other
consideration) or for common stock of the acquiring company as set forth above,
or are exchanged as provided in the preceding paragraph.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Corporation's Board of Directors prior to the Distribution Date. After the
Distribution Date, only certain limited provisions of the Rights Agreement may
be amended by the Corporation's Board of Directors.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the
Corporation in a manner defined as a Triggering Event unless the offer is
conditioned on a substantial number of Rights being acquired. The Rights,
however, should not affect any offer for all outstanding shares of Common Stock
and other voting securities deemed to be fair and otherwise in the Corporation's
best interests by the Corporation's Board of Directors or any merger or other
business combination approved by the Corporation's Board of Directors. In
addition, the possibility exists that the Rights could prevent or discourage
offers opposed by management of the Corporation but favored by the Corporation's
shareholders, including offers containing a shareholder premium.
PREFERRED STOCK
Under the Articles, the Corporation's Board of Directors is authorized
without further shareholder action to provide for the issuance of up to
20,000,000 shares of Preferred Stock in one or more series, with such voting
powers, designations, preferences, rights, qualifications, limitations and
restrictions as shall be set forth in resolutions providing for the issue
thereof adopted by the Board of Directors. As of the date of this Prospectus,
the Corporation has three series of Preferred Stock outstanding which rank on
parity as to dividend and liquidation rights. Such series, Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock, have the voting,
dividend, liquidation, conversion, redemption and other rights set forth in the
following paragraphs. The Corporation has also authorized and reserved for
issuance shares of Junior Participating Preferred Stock to be issued upon the
exercise of the Rights. The Junior Participating Preferred Stock ranks junior to
the Series A Preferred Stock, the Series B Preferred Stock and the Series C
Preferred Stock and senior to the Common Stock. The Bank of New York is the
transfer agent, registrar, dividend disbursing agent and redemption agent for
each of the three series of Preferred Stock.
SERIES A PREFERRED STOCK
Dividends on the Series A Preferred Stock are paid at the annual rate of
$4.50 per share and are cumulative. In the event of dissolution, liquidation or
winding up of the Corporation, holders of the Series A Preferred Stock will be
entitled to payment in full of $50.00 per share, plus any accrued and unpaid
dividends, prior to any distribution to holders of Common Stock. The Series A
Preferred Stock does not have any voting rights, except as expressly provided by
Florida law, or in the event that the equivalent of six quarterly dividends
payable on the Series A Preferred Stock are in arrears, or in the event of
certain amendments, alterations or repeals of the Articles adversely affecting
the holders of Series A Preferred Stock.
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Shares of the Series A Preferred Stock are convertible into shares of
Common Stock, at a conversion price of $26.50 per share, which (assuming a value
of $50.00 per share of the Series A Preferred Stock) is equivalent to
approximately 1.8868 shares of Common Stock for each share of Series A Preferred
Stock. The conversion price is subject to adjustment under certain conditions.
The Series A Preferred Stock is redeemable at the election of the
Corporation at a declining premium in the sixth through tenth years after
issuance and is redeemable at par anytime thereafter. In the event that any
quarterly dividend payable on the Series A Preferred Stock is in arrears and
until all such dividends in arrears are paid or declared and set apart for
payment, the Corporation may not redeem any shares of Series A Preferred Stock
unless all outstanding shares of Series A Preferred Stock are simultaneously
redeemed or acquire any shares of Series A Preferred Stock except in a purchase
offer made on the same terms to all holders for the purchase of all outstanding
shares of Series A Preferred Stock.
At December 31, 1994 there were 2,000,000 shares of Series A Preferred
Stock issued and outstanding.
SERIES B PREFERRED STOCK
Dividends on the Series B Preferred Stock are paid at the annual rate of
$2.50 per share and are cumulative. In the event of dissolution, liquidation or
winding up of the Corporation, holders of the Series B Preferred Stock will be
entitled to payment in full of $25.00 per share, plus any accrued and unpaid
dividends, prior to any distribution to holders of Common Stock. The Series B
Preferred Stock does not have any voting rights, except as provided by Florida
law or in the event that any dividends on the Series B Preferred Stock are in
arrears. If such dividends are in arrears, holders of Series B Preferred Stock
will vote together with holders of Common Stock, and each holder of Series B
Preferred Stock will be entitled to the number of votes equal to the number of
whole shares of Common Stock into which his shares of Series B Preferred Stock
are then convertible.
Shares of Series B Preferred Stock are convertible into shares of Common
Stock at any time at a rate of 2.5988 shares of Common Stock for each share of
Series B Preferred Stock. The conversion rate is subject to adjustment under
certain conditions.
The Series B Preferred Stock is redeemable in the eleventh year after
issuance, at the election of the Corporation, at a price per share equal to the
sum of: (a) $25.00; (b) any accrued and unpaid dividends; and (c) a declining
premium in the eleventh through fifteenth years after issuance. The Corporation
is obligated to purchase shares of Series B Preferred Stock, beginning in the
sixteenth year following issuance, at the election of the holder at a price of
$25.00 per share, plus any accrued and unpaid dividends. In the event that any
quarterly dividend payable on the Series B Preferred Stock is in arrears and
until all such dividends in arrears are paid or declared and set apart for
payment, the Corporation may not redeem any shares of Series B Preferred Stock
unless all outstanding shares of Series B Preferred Stock are simultaneously
redeemed or acquire any shares of Series B Preferred Stock except in a purchase
offer made on the same terms to all holders for the purchase of all outstanding
shares of Series B Preferred Stock.
At December 31, 1994, there were 12,289 shares of Series B Preferred Stock
issued and outstanding.
SERIES C PREFERRED STOCK
Dividends on the Series C Preferred Stock are paid at the annual rate of
$4.00 per share and are cumulative. In the event of dissolution, liquidation or
winding up of the Corporation, holders of the Series C Preferred Stock will be
entitled to payment in full of $50.00 per share, plus any accrued and unpaid
dividends, prior to any distribution to holders of Common Stock. The Series C
Preferred Stock does not have any voting rights, except as expressly provided by
Florida law, or in the event that (i) the equivalent of six quarterly dividends
payable on the Series C Preferred Stock are in arrears, (ii) the Articles are
amended, altered or repealed in a manner which adversely affects the holders of
Series C Preferred Stock, or (iii) shares of any class of stock ranking prior to
the Series C Preferred Stock, as to dividends or upon liquidation, or of any
obligation or security convertible into any right to purchase any such prior
shares, are created, authorized or issued.
Shares of the Series C Preferred Stock are convertible into shares of
Common Stock, at a conversion price of $39.50 per share, which (assuming a value
of $50.00 per share of the Series C Preferred Stock) is equivalent to
approximately 1.2658 shares of Common Stock for each share of Series C Preferred
Stock. The conversion price is subject to adjustment under certain conditions.
The Series C Preferred Stock is redeemable at the election of the
Corporation at a declining premium in the sixth through tenth years after
issuance and is redeemable at par any time thereafter. In the event that any
quarterly dividend payable on the Series C Preferred Stock is in arrears and
until all such dividends in arrears are paid or declared and set apart for
payment, the Corporation may not redeem any shares of Series C Preferred Stock
unless all outstanding shares of Series C Preferred Stock are simultaneously
redeemed
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or acquire any shares of Series C Preferred Stock except in a purchase offer
made on the same terms to all holders for the purchase of all outstanding shares
of Series C Preferred Stock.
At December 31, 1994, there were 2,300,000 shares of Series C Preferred
Stock issued and outstanding.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to underwriters or through agents or
directly to purchasers. A Prospectus Supplement will set forth the terms of the
offering of the Securities to which such Prospectus Supplement relates,
including the name or names of any underwriters or agents with whom the
Corporation has entered into arrangements with respect to the sale of
Securities, the public offering or purchase price of such Securities and the net
proceeds to the Corporation from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any discounts and commissions
allowed or paid to dealers, if any, any commissions allowed or paid to agents,
and the securities exchanges, if any, on which the Securities will be listed.
Dealer trading may take place in the Securities, including Securities not listed
on any securities exchange.
The Securities may be purchased to be re-offered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters acting alone, which underwriters may, if permissible, be
affiliates of the Corporation. The underwriter or underwriters with respect to
an underwritten offering of the Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover page of
such Prospectus Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the Securities will
be subject to certain conditions precedent, and each of the underwriters with
respect to a sale of Securities will be obligated to purchase all of its
allocated Securities if any are purchased. Any initial public offering price and
any discount or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Securities may be offered and sold by the Corporation directly or through
agents designated by the Corporation from time to time, which agents may be
affiliates of the Corporation. Any agent involved in the offer and sale of the
Securities in respect of which this Prospectus is being delivered will be named,
and any commissions payable by the Corporation to such agent will be set forth,
in the applicable Prospectus Supplement. Unless otherwise indicated in such
Prospectus Supplement, any such agent will be acting on a best effort basis for
the period of its appointment.
Any underwriter or agent participating in the distribution of the Debt
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Securities so offered and sold and any discounts or
commissions received by them from the Corporation and any profit realized by
them on the sale or resale of the Securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with the Corporation, to indemnification by the
Corporation against certain civil liabilities, including liabilities under the
Securities Act.
Certain of the underwriters and/or agents and their affiliates may be
customers of, including borrowers from, engage in transactions with, and perform
services for, the Corporation in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Corporation
will authorize dealers or other persons acting as the Corporation's agents to
solicit offers by certain institutions to purchase Debt Securities and/or
Preferred Stock from the Corporation pursuant to contracts providing for payment
and delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but in
all cases such institutions must be approved by the Corporation. The obligations
of any purchaser under any such contract will not be subject to any conditions
except that (i) the purchase of the Offered Debt Securities or the Preferred
Stock shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject, and (ii) if the Offered Debt
Securities or the Preferred Stock are also being sold to underwriters, the
Corporation shall have sold to such underwriters the Offered Debt Securities or
the Preferred Stock not sold for delayed delivery. The dealers and such other
persons will not have any responsibility in respect to the validity or
performance of such contracts.
LEGAL OPINIONS
The validity of the Debt Securities and the Preferred Stock will be passed
upon for the Corporation by Mahoney Adams & Criser, P.A. (a professional
corporation), Jacksonville, Florida, counsel for the Corporation, and Mahoney
Adams & Criser, P.A. may
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rely as to matters of New York law on the opinion of Simpson Thacher & Bartlett.
Marshall M. Criser, a director of the Corporation, is a member of the firm of
Mahoney Adams & Criser, P.A. If the Securities are being distributed in an
underwritten offering, the validity of the Debt Securities and the Preferred
Stock will be passed upon for the underwriters or agents by Simpson Thacher &
Bartlett (a partnership which includes professional corporations), New York, New
York, and Simpson Thacher & Bartlett may rely as to matters of Florida law on
the opinion of Mahoney Adams & Criser, P.A.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Annual Report on Form 10-K of the
Corporation for the year ended December 31, 1994, have been so incorporated in
reliance on the reports of Arthur Andersen LLP and Price Waterhouse LLP,
independent accountants, given on the authority of such firms as experts in
issuing said reports.
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<PAGE>
No dealer, agent, salesperson or any other person has been authorized to give
any information or to make any representations other than those contained in
this Prospectus or in any accompanying Prospectus Supplement in connection with
the offer contained herein and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Corporation. This Prospectus or any accompanying Prospectus Supplement shall
not constitute an offer to sell or the solicitation of an offer to buy any
securities other than the Securities described herein or therein or an offer to
sell or the solicitation to buy any Securities offered hereby or thereby in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus or any accompanying Prospectus Supplement nor any
sale made hereunder or thereunder shall, under any circumstances, create any
implication that the information in this Prospectus or any accompanying
Prospectus Supplement or the documents incorporated therein by reference is
correct as of any time subsequent to their respective dates or that there has
been no change in the affairs of the Corporation since such dates.
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TABLE OF CONTENTS
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain
Information by Reference . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Ratios of Earnings
to Fixed Charges and Combined
Fixed Charges and Preferred
Stock Dividend Requirements. . . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Description of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 7
Description of Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . 18
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . 20
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
BARNETT BANKS, INC.
Debt Securities
Preferred Stock
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BARNETT BANKS, INC.
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Prospectus
February 3, 1995
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses will be incurred in connection with the issuance and
distribution of the Debt Securities and the Preferred Stock being registered,
other than underwriting discounts and commissions.
Securities and Exchange Commission
Registration Fee $ 344,830
Blue Sky Fees and Expenses ____________
Accounting Fees and Expenses ____________
Legal Fees and Expenses ____________
Trustees' and Transfer Agent Fees ____________
Printing and Engraving Expenses ____________
Miscellaneous Expenses ____________
$
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-------------
All of the above items, except the registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles and Bylaws of the Corporation require the indemnification of
directors and officers to the fullest extent permitted by law.
Subsection (1) of Section 607.0850 of the Florida Business Corporation Act
(the "FBCA") empowers a corporation to indemnify any person who was or is a
party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against liability
incurred in connection with such proceeding (including any appeal thereof) if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Subsection (2) of Section 607.0850 of the FBCA empowers a corporation to
indemnify any person who was or is a party to any proceeding by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth in the preceding paragraph,
against expenses and amounts paid in settlement not exceeding,
-II-1-
<PAGE>
in the judgment of the board of directors, the estimated expenses of litigating
the proceeding to conclusion, actually and reasonably incurred in connection
with the defense or settlement of such proceeding, including appeals, provided
that the person acted under the standards set forth in the preceding paragraph.
However, no indemnification should be made for any claim, issue or matter as to
which such person is adjudged to be liable unless, and only to the extent that,
the court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
deems proper.
Subsection (3) of Section 607.0850 of the FBCA provides that to the extent
a director or officer of a corporation has been successful on the merits or
otherwise in defense of any proceeding referred to in subsection (1) or (2) of
Section 607.0850 of the FBCA or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith.
Subsection (4) of Section 607.0850 of the FBCA provides that any
indemnification under subsection (1) or (2) of Section 607.0850 of the FBCA,
unless determined by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or (2) of Section
607.0850 of the FBCA. Such determination shall be made:
(a) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) if such a quorum is not obtainable, or, even if obtainable, by
majority vote of a committee duly designated by the board of directors (in
which directors who are parties may participate) consisting solely of two
or more directors not at the time parties to the proceeding;
(c) by independent legal counsel:
(1) selected by the board of directors as prescribed in
paragraph (a) or the committee selected as prescribed in paragraph
(b); or
(2) if no quorum of directors can be obtained under paragraph
(a) or no committee can be designated under paragraph (b), by a
majority vote of the full board of directors (in which directors who
are parties may participate); or
(d) by the shareholders by a majority vote of a quorum of
shareholders who were not parties to such proceedings or, if no quorum is
obtainable, by a majority vote of shareholders who were not parties to such
proceeding.
-II-2-
<PAGE>
Under subsection (6) of Section 607.0850 of the FBCA, expenses incurred by
a director or officer in defending a civil or criminal proceeding may be paid by
the corporation in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that such director or officer is not entitled to
indemnification under Section 607.0850 of the FBCA.
Subsection (7) of Section 607.0850 of the FBCA states that indemnification
and advancement of expenses provided under Section 607.0850 of the FBCA are not
exclusive and empowers the corporation to make any other or further
indemnification or advancement of expenses under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, for actions in an official
capacity and in other capacities while holding an office. However, a corporation
cannot indemnify or advance expenses if a judgment or other final adjudication
establishes that the actions or omissions to act of the director or officer were
material to the adjudicated cause of action and the director or officer (a)
violated criminal law, unless the director or officer had reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe his conduct
was unlawful, (b) derived an improper personal benefit from a transaction, (c)
was or is a director in a circumstance where the liability under Section
607.0834 of the FBCA (relating to unlawful distributions) applies, or (d)
engaged in willful misconduct or conscious disregard for the best interests of
the corporation in a proceeding by or in right of the corporation to procure a
judgment in its favor or in a proceeding by or in right of a shareholder.
Subsection (9) of Section 607.0850 of the FBCA permits any director or
officer who is or was a party to a proceeding to apply for indemnification or
advancement of expenses, or both, to any court of competent jurisdiction and
lists the determinations the court should make before ordering indemnification
or advancement of expenses.
Subsection (12) of Section 607.0850 of the FBCA permits a corporation to
purchase and maintain insurance for a director or officer against any liability
incurred in his official capacity or arising out of his status as such
regardless of the corporation's power to indemnify him against such liability
under Section 607.0850.
As allowed by Section 607.0850(12) of the FBCA, the Corporation maintains
liability insurance covering directors and officers.
ITEM 16. EXHIBITS.
The exhibits listed on the Exhibit Index on page II-8 of this Registration
Statement have been previously filed, are filed herewith, will be filed by
amendment, or are incorporated herein by reference to other filings.
-II-3-
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the
-II-4-
<PAGE>
provisions described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida, on the 3rd day of
February, 1995.
BARNETT BANKS, INC.
By: /s/ Charles E. Rice
-----------------------------------
Charles E. Rice, Chairman and
Chief Executive Officer
-II-5-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
- --------- ----- ----
* Director February 3, 1995
- ---------------------------
Walter H. Alford
* Director February 3, 1995
- ---------------------------
Rita Bornstein
* Director February 3, 1995
- ---------------------------
James L. Broadhead
* Director February 3, 1995
- ---------------------------
Alvin R. Carpenter
Director February 3, 1995
- ---------------------------
Armando M. Codina
* Director February 3, 1995
- ---------------------------
Marshall M. Criser
* Director February 3, 1995
- ---------------------------
Jack B. Critchfield
Director February 3, 1995
- ---------------------------
Remedios Diaz-Oliver
* Director February 3, 1995
- ---------------------------
Carter H. Golembe
* President February 3, 1995
- ---------------------------
Allen L. Lastinger, Jr. Chief Operating
Officer and Director
/s/ Patrick J. McCann Controller February 3, 1995
- ---------------------------
Patrick J. McCann (Principal Accounting
Officer)
II-6
<PAGE>
Signature Title Date
- --------- ----- ----
* Director February 3, 1995
- ---------------------------
Clarence V. McKee
* Director February 3, 1995
- ---------------------------
Thompson L. Rankin
* Chief Financial February 3, 1995
- --------------------------- Officer (Principal
Charles W. Newman Financial Officer)
* Chairman, Chief February 3, 1995
- --------------------------- Executive Officer
Charles E. Rice and Director
(Principal Executive
Officer)
* Director February 3, 1995
- ---------------------------
Frederick H. Schultz
* Director February 3, 1995
- ---------------------------
Stewart Turley
* Director February 3, 1995
- ---------------------------
John A. Williams
/s/ Patrick J. McCann
- ---------------------------
Patrick J. McCann
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
PAGINATION IN
SEQUENTIAL
EXHIBIT EXHIBIT NUMBERING
NUMBER DESIGNATION SYSTEM
- ------ ----------- -----------------
(1)(a) Form of Underwriting Agreements. incorporated by
reference to
Exhibit (1)(a) of
Corporation's
Registration
Statement No. 33-
59246
(4)(a) Amended and Restated Articles of
Incorporation of the Corporation. incorporated by
reference to
Exhibit 4(a) of
Corporation's
Registration
Statement No. 33-
59246
(4)(b) Bylaws of the Corporation. incorporated by
reference to
Exhibit 3(b) of
Corporation's
Annual Report on
Form 10-K for the
year ended December 31,
1994
(4)(c) Form of Certificate of Designation.
(4)(d) Rights Agreement. incorporated by
reference to
Exhibit (4)(c) to
the Corporation's
Registration
Statement No. 33-
36307
(4)(e) Form of Indenture relating to the
Subordinated Securities.
(4)(f) Form of Indenture relating to the
Senior Securities.
(5) Opinion of Mahoney Adams & Criser, P.A. as
to the validity of the Debt Securities and
the Preferred Stock.
(12) Computation of Ratios of Earnings to incorporated by
Combined Fixed Charges and Preferred reference to
Dividend Requirements and Computation Exhibit 12 of
of Ratio of Earnings to Fixed Charges Corporation's
Annual Report on
Form 10-K for the
year ended December 31,
1994
-II-8-
<PAGE>
(23)(a) Consent of Arthur Andersen LLP
(23)(b) Consent of Price Waterhouse LLP
(23)(c) Consent of Mahoney Adams & Criser, P.A., counsel to the Corporation
(included in Exhibit (5)).
(24) Powers of Attorney.
(25)(a) Statement of Eligibility of Qualification of Subordinated Debt
Trustee under Trust Indenture Act of 1939 on Form T-1.
(25)(b) Statement of Eligibility and Qualification of Senior Debt Trustee
under Trust Indenture Act of 1939 on Form T-1.
-II-9-
<PAGE>
EXHIBIT 4(c)
Form of Certificate of Designation
<PAGE>
FORM OF CERTIFICATE OF THE DESIGNATION,
PREFERENCES, RIGHTS AND LIMITATIONS OF
Series ___________ $ _____________ [CUMULATIVE CONVERTIBLE] PREFERRED STOCK
$0.10 PAR VALUE
of
BARNETT BANKS, INC.
____________________________________________________
Pursuant to Section 607.0602 of the
Florida Business Corporation Act
____________________________________________________
1. DESIGNATION. The designation of the series of preferred stock created
by this resolution shall be Series ______ $________________ [Cumulative
Convertible] Preferred Stock, $0.10 par value, of Barnett Banks, Inc. (the
"Corporation") (hereinafter referred to as "Series ________ Preferred Stock"),
and the number of shares constituting such series shall be ___________________,
which number may be increased or decreased (but not below the number of shares
then outstanding) from time to time by the Board of Directors of the Corporation
(the "Board"). The Series ______ Preferred Stock shall rank prior to the common
stock of the Corporation, $2.00 par value (the "Common Stock"), with respect to
the payment of dividends and the distribution of assets and shall rank PARI
PASSU with Series A $4.50 Cumulative Convertible Preferred Stock, Series B $2.50
Cumulative Convertible Preferred Stock and Series C $4.00 Cumulative Convertible
Preferred Stock.
2. DIVIDEND RIGHTS.
(a) The holders of shares of Series ______ Preferred Stock shall be
entitled to receive, when and as declared by the Board, out of funds
legally available therefor, (cumulative preferential cash dividends,
accruing from the date of issuance), at the annual rate of $________ per
share, and no more, payable quarterly on _____________, _______________,
_________________, and __________________of each year (each of such
quarterly periods being hereinafter referred to as a "dividend period").
Dividends on the Series _______ Preferred Stock shall first become payable
on the first day of ___________________, __________________________,
___________________________ or ______________________, as the case may be,
next following the date of issuance. The date of issuance of the shares of
Series ______ Preferred Stock issued shall be
_____________________________________ (hereinafter referred to as the
"Issue Date").
<PAGE>
(b) [Dividends on shares of Series _________ Preferred Stock shall be
cumulative from the date of issuance whether or not there shall be funds
legally available for the payment thereof. Accumulations of dividends on
Series _________ Preferred Stock shall not bear interest]. The Corporation
shall not (i) declare or pay or set apart for payment any dividends or
distributions on any stock ranking as to dividends junior to the Series
_______ Preferred Stock (other than dividends paid in shares of such junior
stock) or (ii) make any purchase or redemption of, or any sinking fund
payment for the purchase or redemption of, any stock ranking as to
dividends junior to the Series ________ Preferred Stock (other than a
purchase or redemption made by issue or delivery of such junior stock)
unless all dividends payable on all outstanding shares of Series ________
Preferred Stock [for all past dividend periods] shall have been paid in
full or declared and a sufficient sum set apart for payment thereof;
PROVIDED, HOWEVER, that any moneys theretofore deposited in any sinking
fund with respect to any preferred stock of the Corporation in compliance
with the provisions of such sinking fund may thereafter be applied to the
purchase or redemption of such preferred stock in accordance with the terms
of such sinking fund regardless of whether at the time of such application
all dividends payable on all outstanding shares of Series _________
Preferred Stock [for all past dividend periods] shall have been paid in
full or declared and a sufficient sum set apart for payment thereof.
(c) All dividends declared on shares of Series ________ Preferred
Stock and any other class of preferred stock or series thereof ranking on a
parity as to dividends with the Series ________ Preferred Stock shall be
declared pro-rata, so that the amounts of dividends declared per share on
the Series ________ Preferred Stock and such other preferred stock for the
same dividend period, or for the dividend period of the Series _______
Preferred Stock ending within the dividend period of such other stock,
shall, in all cases, bear to each other the same ratio that accrued
dividends per share on the shares of Series ________ Preferred Stock and
such other stock bear to each other.
3. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders
of Series ________ Preferred Stock shall be entitled to receive out of the
assets of the Corporation available for distribution to shareholders an
amount equal to $________________ per share plus an amount equal to any
accrued and unpaid dividends thereon to and including the date of such
distribution, and no more, before any distribution shall be made to the
holders of any class of stock of the Corporation ranking junior to the
Series _________ Preferred Stock as to the distribution of assets.
(b) In the event the assets of the Corporation available for
distribution to shareholders upon any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full the amounts payable with respect to
the Series ________ Preferred Stock and any other shares of preferred stock
of the Corporation ranking on a parity with the Series ________ Preferred
Stock as to the distribution of assets, the holders of Series ________
Preferred Stock and the
2
<PAGE>
holders of such other preferred stock shall share ratably in any
distribution of assets of the Corporation in proportion to the full
respective preferential amounts to which they are entitled.
(c) The merger or consolidation of the Corporation into or with any
other corporation, the merger or consolidation of any other corporation
into or with the Corporation or the sale of the assets of the Corporation
substantially as an entirety shall not be deemed a liquidation, dissolution
or winding up of the affairs of the Corporation within the meaning of this
Paragraph 3.
4. REDEMPTION.
(a) The Corporation, at its option, with the prior consent of the
Board of Governors of the Federal Reserve System, may redeem any or all
shares of Series ______ Preferred Stock at any time on or after
________________________, 19____ at the redemption prices set forth below,
plus an amount equal to accrued and unpaid dividends thereon to and
including the date of redemption (the "Redemption Price"):
Twelve month period beginning Redemption Price
----------------------------- ----------------
(b) If less than all the outstanding shares of Series _______
Preferred Stock are to be redeemed, the shares to be redeemed shall be
selected pro rata as nearly as practicable or by lot, as the Board may
determine.
(c) Whenever the Corporation shall redeem any shares of Series
________ Preferred Stock, the record date for the payment of any dividend
on the Common Stock payable for the dividend period in which the redemption
date occurs shall be the same as the record date for the payment of
dividends on the Series _______ Preferred Stock.
(d) Notice of any redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
date fixed for redemption to the holders of record of the shares of Series
_________ Preferred Stock to be redeemed, at their respective addresses
appearing on the books of the Corporation. Notice so mailed shall be
conclusively presumed to have been duly given whether or not actually
received. Such notice shall state: (i) the date fixed for redemption; (ii)
the Redemption Price; (iii) the right of the holders of Series _________
Preferred Stock to convert such stock into Common Stock until the close of
business on the redemption date and the then effective conversion price;
(iv) if less than all the shares held by such holder are to be redeemed,
the number of shares to be redeemed from such holder; and (v) the place
where certificates for such shares are to be surrendered for payment of the
Redemption Price. If such notice is mailed as aforesaid, and if on or
before the date fixed for redemption funds sufficient to redeem the shares
called for redemption are set aside by the Corporation in trust for the
3
<PAGE>
account of the holders of the shares to be redeemed, notwithstanding the
fact that any certificate for shares called for redemption shall not have
been surrendered for cancellation, on and after the redemption date the
shares represented thereby so called for redemption shall be deemed to be
no longer outstanding, dividends thereon shall cease to accrue, and all
rights of the holders of such shares as shareholders of the Corporation
shall cease, except the right to receive the Redemption Price, without
interest, upon surrender of the certificate representing such shares. Upon
surrender in accordance with the aforesaid notice of the certificate for
any shares so redeemed (duly endorsed or accompanied by appropriate
instruments of transfer, if so required by the Corporation in such notice),
the holders of record of such shares shall be entitled to receive the
Redemption Price, without interest.
(e) At the option of the Corporation, if notice of redemption is
mailed as aforesaid, and if prior to the date fixed for redemption funds
sufficient to pay in full the Redemption Price are deposited in trust, for
the account of the holders of the shares to be redeemed, with a bank or
trust company named in such notice doing business in the Borough of
Manhattan, the City of New York, State of New York or the City of
Jacksonville, State of Florida and having capital, surplus and undivided
profits of at least $3 million, which bank or trust company also may be the
transfer agent and/or paying agent for the Series _________ Preferred
Stock, notwithstanding the fact that any certificate for shares called for
redemption shall not have been surrendered for cancellation, on and after
such date of deposit the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, and all rights of
the holders of such shares as shareholders of the Corporation shall cease,
except [the right of the holders thereof to convert such shares in
accordance with the provisions of Paragraph 5 hereof at any time prior to
the close of business on the redemption date and] the right of the holders
thereof to receive out of the funds so deposited in trust the Redemption
Price, without interest, upon surrender of the certificate(s) representing
such shares. Any funds so deposited with such bank or trust company in
respect of shares of Series _______ Preferred Stock converted before the
close of business on the redemption date shall be returned to the
Corporation upon such conversion. Any funds so deposited with such a bank
or trust company which shall remain unclaimed by the holders of shares
called for redemption at the end of six years after the redemption date
shall be repaid to the Corporation, on demand, and thereafter the holders
of any such shares shall look only to the Corporation for the payment,
without interest, of the Redemption Price.
(f) Any provision of this Paragraph 4 to the contrary
notwithstanding, in the event that any quarterly dividend payable on the
Series _________ Preferred Stock shall be in arrears and until all such
dividends in arrears shall have been paid or declared and set apart for
payment, the Corporation shall not redeem any shares of Series __________
Preferred Stock unless all outstanding shares of Series __________
Preferred Stock are simultaneously redeemed and shall not purchase or
otherwise acquire any shares of Series ______ Preferred Stock except in
accordance with a purchase offer made by the Corporation on the same terms
to all holders of record of Series __________ Preferred Stock for the
purchase of all outstanding shares thereof.
4
<PAGE>
[5. CONVERSION RIGHTS. The holders of shares of Series __________
Preferred Stock shall have the right, at their option, to convert such shares
into shares of Common Stock on the following terms and conditions:
(a) Shares of Series _________ Preferred Stock shall be convertible
at any time into fully paid and nonassessable shares of Common Stock at a
conversion price of $___________ per share (the "Conversion Price"). The
Conversion Price shall be subject to adjustment from time to time as
hereinafter provided. No payment or adjustment shall be made on account of
any accrued and unpaid dividends on shares of Series __________ Preferred
Stock surrendered for conversion prior to the record date for the
determination of shareholders entitled to such dividends or on account of
any dividends on the Common Stock issued upon such conversion subsequent to
the record date for the determination to shareholders entitled to such
dividends. If any shares of Series __________ Preferred Stock shall be
called for redemption, the right to convert the shares designated for
redemption shall terminate at the close of business on the date fixed for
redemption unless default is made in the payment of the Redemption Price.
In the event of default in the payment of the Redemption Price, the right
to convert the shares designated for redemption shall terminate at the
close of business on the business day immediately preceding the date that
such default is cured.
(b) In order to convert shares of Series __________ Preferred Stock
into Common Stock, the holder thereof shall surrender the certificate
therefor, duly endorsed if the Corporation shall so require, or accompanied
by appropriate instruments of transfer satisfactory to the Corporation at
the office of the Transfer Agent for the Series _________Preferred Stock,
or at such other office as may be designated by the Corporation, together
with written notice that such holder irrevocably elects to convert such
shares. Such notice shall also state the name and address in which such
holder wishes the certificate for the shares of Common Stock issuable upon
conversion to be issued. As soon as practicable after receipt of the
certificate representing the shares of Series _________ Preferred Stock to
be converted and the notice of election to convert the same, the
Corporation shall issue and deliver at said office a certificate or
certificates for the number of whole shares of Common Stock issuable upon
conversion of the shares of Series ____________ Preferred Stock surrendered
for conversion, together with a cash payment in lieu of any fraction of a
share, as hereinafter provided, to the person entitled to receive the same.
Shares of Series ___________ Preferred Stock shall be deemed to have been
converted immediately prior to the close of business on the date such
shares are surrendered for conversion and notice of election to convert the
same is received by the Corporation in accordance with the foregoing
provisions, and the person entitled to receive the Common Stock issuable
upon such conversion shall be deemed for all purposes as record holder of
such Common Stock as of such date.
(c) In the case of any share of Series _____________ Preferred Stock
which is converted after any record date with respect to the payment of a
dividend on the Series _________ Preferred Stock and on or prior to the
date on which such dividend is payable by the Corporation (the "Dividend
Due Date") the dividend due on such Dividend Due
5
<PAGE>
Date shall be payable on such Dividend Due Date to the holder of record of
such share as of such preceding record date notwithstanding such
conversion. Shares of Series ________ Preferred Stock surrendered for
conversion during the period from the close of business on any record date
for the payment of a dividend on the Series ________ Preferred Stock next
preceding any Dividend Due Date to the opening of business on such Dividend
Due Date shall (except in the case of shares of Series B Preferred Stock
and Series C Preferred Stock which have been called for redemption on a
Redemption Date within such period) be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Corporation of an
amount equal to the dividend payable on such Dividend Due Date on the
shares of Series _________ Preferred Stock being surrendered for
conversion. The dividend with respect to a share of Series __________
Preferred Stock called for redemption on a Redemption Date during the
period from the close of business on any record date for the payment of a
dividend on the Series ___________ Preferred Stock next preceding any
Dividend Due Date to the opening of business on such Dividend Due Date
shall be payable on such Dividend Due Date to the holder of record of such
share on such dividend record date notwithstanding the conversion of such
share of Series __________ Preferred Stock after such record date and prior
to such Dividend Due Date, and the holder converting such share of Series
___________ Preferred Stock need not include a payment of such dividend
amount upon surrender of such share of Series ____________ Preferred Stock
for conversion. Except as provided in this paragraph, no payment or
adjustment shall be made upon any conversion on account of any dividends
accrued on shares of Series ___________ Preferred Stock surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
(d) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series ____________ Preferred Stock. If more
than one share of Series _________ Preferred Stock is surrendered at one
time by the same holder, the number of full shares issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares so
surrendered. If the conversion of any shares of Series _________ Preferred
Stock results in a fractional share of Common Stock, the Corporation shall
pay cash in lieu thereof in an amount equal to such fraction multiplied by
the closing price, as defined in subsection (vi) of Paragraph 5(e) below on
the date on which the shares of Series ____________ Preferred Stock were
duly surrendered for conversion, or if such date is not a trading date, on
the next succeeding trading date.
(e) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall pay or make a dividend or
other distribution on shares of Common Stock in Common Stock, the
Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
reduced by multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such
6
<PAGE>
dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this
subsection (i), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Corporation but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
The Corporation will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Corporation.
(ii) In case the Corporation shall issue rights or warrants to
all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price per share (determined as provided in subsection
(vi) below) of the Common Stock on the date fixed for the
determination of shareholders entitled to receive such rights or
warrants (other than pursuant to a dividend reinvestment plan), the
Conversion Price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this subsection (ii), the number
of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Corporation but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Corporation will not issue
any rights or warrants in respect of shares of Common Stock held in
the treasury of the Corporation.
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
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(iv) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to subsection (ii) above, any dividend or
distribution paid in cash out of the earned surplus of the Corporation
and any dividend or distribution referred to in subsection (i) above),
the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution by
a fraction of which the numerator shall be the current market price
per share (determined as provided in subsection (vi) below) of the
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board, whose determination
shall be conclusive and shall be described in a statement filed with
the Transfer Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be such current market price per share of
the Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such
distribution. If after the Distribution Date (the "Distribution
Date"), as defined in the Rights Agreement, dated as of February 21,
1990, between the Corporation and the Bank of New York as Rights
Agent, as in effect on the date hereof (the "Rights Agreement"),
converting holders of the Series ____________ Preferred Stock are not
entitled to receive the Rights, as defined in the Rights Agreement,
which would otherwise be attributable (but for the date of conversion)
to the shares of Common Stock received upon such conversion, then
adjustment of the Conversion Price shall be made under the preceding
sentence as if the Rights were then being distributed to holders of
the Common Stock. If such an adjustment is made and the Rights are
later redeemed, invalidated or terminated, then a corresponding
reversing adjustment shall be made to the Conversion Price, on an
equitable basis, to take account of such event. However, the
Corporation may elect to amend the provisions presently applicable to
the Rights so that each share of Common Stock issuable upon conversion
of the Series ____________ Preferred Stock, whether or not issued
after the Distribution Date for such Rights, will be accompanied by
the Rights which would otherwise be attributable (but for the date of
conversion) to such shares of Common Stock, in which event the
preceding two sentences will not apply.
(v) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which Paragraph 5
(g) below applies) shall be deemed to involve (A) a distribution of
such securities other than Common Stock to all holders of Common Stock
(and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of shareholders entitled to
receive such distribution" and the "date fixed for such determination"
within the meaning of subsection (iv) above), and (B) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately
8
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prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such
subdivision become effective" or "the day upon which such combination
becomes effective" as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
subsection (iii) above).
(vi) For the purpose of any computation under subsections (ii)
and (iv) above, the current market price per share of Common Stock on
any day shall be deemed to be the average of the daily closing prices
for the 5 consecutive trading days selected by the Board commencing
not more than 20 trading days before, and ending not later than the
day in question. The closing price for each day shall be the reported
last sale price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or,
if the Common Stock is not listed or admitted to trading on such
exchange, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations
National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on
such National Market System, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Board for
that purpose.
(f) Whenever the Conversion Price shall be adjusted as herein
provided (i) the Corporation shall forthwith keep available at the office
of the Transfer Agent for the Series _______________ Preferred Stock a
statement describing in reasonable detail the adjustment, the facts
requiring such adjustment and the method of calculation used; and (ii) the
Corporation shall cause to be mailed by first class mail, postage prepaid,
as soon as practicable to each holder of record of shares of Series
___________ Preferred Stock a notice stating that the Conversion Rate has
been adjusted and setting forth the adjusted Conversion Rate.
(g) In the event of any consolidation of the Corporation with or
merger of the Corporation into any other corporation (other than a merger
in which the Corporation is the surviving corporation) or a sale of the
assets of the Corporation substantially as an entirety, or any statutory
exchange of securities with another corporation, the holder of each share
of Series _______________ Preferred Stock shall have the right, after such
consolidation, merger, sale or exchange to convert such share into the
number and kind of shares of stock or other securities and the amount and
kind of property receivable upon such consolidation, merger, sale or
exchange by a holder of the number of shares of Common Stock issuable upon
conversion of such shares of Series _______________ Preferred Stock
immediately prior to such consolidation, merger or sale. Provision shall
be made for adjustments in the Conversion Price which shall be as nearly
equivalent as may be
9
<PAGE>
practicable to the adjustments provided for in Paragraph 5(e). The
provisions of this Paragraph 5(g) shall similarly apply to successive
consolidations, mergers, sales or exchanges.
(h) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares
of Series ____________ Preferred Stock, but the Corporation shall not be
required to pay any taxes which may be payable in respect of any transfer
involved in the issuance of shares of Common Stock in a name other than
that in which the shares of Series _____ Preferred Stock so converted are
registered, and the Corporation shall not be required to issue or deliver
any such shares unless and until the person requesting such issuance shall
have paid to the Corporation the amount of any such taxes, or shall have
established to the satisfaction of the Corporation that such taxes have
been paid.
(i) The Corporation may make such reductions in the Conversion Price,
in addition to those required by subsections (i) through (iv) of Paragraph
5(e) above, as it considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients.
(j) The Corporation shall at all times reserve and keep available out
of its authorized but unissued Common Stock the full number of shares of
Common Stock issuable upon the conversion of all shares of Series
____________ Preferred Stock then outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash out
of retained earnings; or
(ii) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares
of capital stock of any class or of any other rights; or
(iii) the Corporation shall propose to effect any
consolidation of the Corporation with or merger of the Corporation
with or into any other corporation or a sale of the assets of the
Corporation substantially as an entirety which would result in an
adjustment under Paragraph 5(g);
the Corporation shall cause to be mailed to the holders of record of Series
____________ Preferred Stock at least 20 days prior to the applicable date
hereinafter specified a notice stating (x) the date on which a record is to
be taken for the purpose of such dividend, distribution or rights or, if a
record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution or rights are to be
determined or (y) the date on which such consolidation, merger or sale is
expected to become effective, and the date as of which it is expected that
holders of Common Stock
10
<PAGE>
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such consolidation, merger or
sale. Failure to give such notice, or any defect therein, shall not affect
the legality or validity of such dividend, distribution, consolidation,
merger or sale.]
6. VOTING RIGHTS. [The Series ____________ Preferred Stock shall
not have any voting powers, either general or special, except that:
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66-2/3% of all of the shares of the Series ____________ Preferred
Stock, and any one or more series of preferred stock of the Corporation
similarly affected, at the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called for the purpose at which
the holders of shares of such series of preferred stock shall [vote
together as a separate class], shall be necessary for authorizing,
effecting or validating the amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation of the Corporation or of any
amendment or supplement thereto (including any Certificate of Designation
or any similar document relating to any series of preferred stock of the
Corporation) which would adversely affect the preferences, rights, powers
or privileges of the Series ____________ Preferred Stock and such other
series of preferred stock.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66-2/3% of all of the shares of the Series ____________ Preferred
Stock and all other series of preferred stock of the Corporation ranking on
a parity with shares of the Series ____________ Preferred Stock, either as
to dividends or upon liquidation, at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of the Series ____________ Preferred
Stock and such other series of preferred stock of the Corporation shall
[vote together as a single class without regard to series], shall be
necessary for authorizing, effecting or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of the Series ____________
Preferred Stock as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation into any such
prior shares, or the creation, authorization or issue of any obligation or
security convertible into or evidencing the right to purchase any such
prior shares;
(c) Whenever, at any time or times, dividends payable on the shares
of Series ____________ Preferred Stock shall be in arrears in an amount
equal to at least six full quarterly dividends on shares of the Series
____________ Preferred Stock at the time outstanding, the holders of the
outstanding shares of Series ____________ Preferred Stock shall have the
exclusive right, [voting separately as a class together with holders of
shares of any one or more other series of preferred stock ranking on a
parity with the Series ___________ Preferred Stock either as to dividends
or the distribution of assets upon liquidation, dissolution or winding up
and upon which like voting rights have been conferred and are exercisable],
to elect two directors of the Corporation at the Corporation's next annual
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meeting of shareholders and at each subsequent annual meeting of
shareholders. At elections for such directors, each holder of Series
____________ Preferred Stock shall be entitled to one vote for each share
held (the holders of shares of any other series of Preferred Stock ranking
on such a parity being entitled to such number of votes, if any, for each
share of stock held as may be granted to them). Upon the vesting of such
right of the holders of Series ____________ Preferred Stock, the MAXIMUM
authorized number of members of the Board of Directors shall automatically
be increased by two and the two vacancies so created shall be filled by
vote of the holders of the outstanding shares of Series ____________
Preferred Stock (either alone or together with the holders of shares of any
one or more other series of Preferred Stock ranking on such a parity) as
hereinafter set forth. The right of the holders of Series ____________
Preferred Stock, voting separately as a class to elect (either alone or
together with the holders of shares of any one or more other series of
Preferred Stock ranking on such a parity) members of the Board of Directors
of the Corporation as aforesaid shall continue until such time as all
dividends accumulated on the Series ____________ Preferred Stock shall have
been paid in full, at which time such right shall terminate, except as
herein or by law expressly provided, subject to revesting in the event of
each and every subsequent default of the character above mentioned.
(d) Each director elected by the holders of shares of Series ____
Preferred Stock shall continue to serve as such director for the full term
for which he shall have been elected, notwithstanding that prior to the end
of such term all dividends on the Series ____________ Preferred Stock shall
have been paid in full. If the office of any director elected by the
holders of Series ____________ Preferred Stock voting as a class becomes
vacant by reason of death, resignation, retirement, disqualification,
removal from office, or otherwise, the remaining director elected by the
holders of Series ____________ Preferred Stock voting as a class may choose
a successor who shall hold office for the unexpired term in respect of
which such vacancy occurred. Whenever the term of office of the directors
elected by the holders and the special voting powers vested in the holders
of Series ____________ Preferred Stock as provided in this paragraph (d)
shall have expired, the number of directors shall be such number as may be
provided for in the Articles of Incorporation or By-Laws of the Corporation
irrespective of any increase made pursuant to the provisions of this
paragraph (d).]
7. REACQUIRED SHARES. Shares of Series ____________ Preferred Stock
converted, redeemed, or otherwise purchased or acquired by the Corporation shall
be restored to the status of authorized but unissued shares of preferred stock
without designation as to series.
8. NO SINKING FUND. Shares of Series ____________ Preferred Stock are
not subject to the operation of a sinking fund.
12
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[Signatures on following page]
13
<PAGE>
IN WITNESS WHEREOF, BARNETT BANKS, INC., has caused this Certificate to be
signed by _________________________________, its ________________________ and
______________________________, its Secretary, and its Corporate Seal to be
hereunto affixed this ____ day of _______________________, 19___.
BARNETT BANKS, INC.
By:___________________________________
By:___________________________________
Sworn to and subscribed before me
this ____ day of ____________________________, 199__.
_______________________________________________________
Signature of Notary Public
State of Florida
_______________________________________________________
[Print, Type or Stamp Commissioned Name
of Notary Public]
Personally known ___________
or produced identification ___________
Type of identification produced ___________
My commission number ___________
My commission expires ___________
14
<PAGE>
EXHIBIT (4) (e)
Form of Indenture relating to the Subordinated Securities
<PAGE>
SUBORDINATED INDENTURE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BARNETT BANKS, INC.
TO
CHEMICAL BANK,
TRUSTEE
----------------
INDENTURE
Dated as of February __, 1995
----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and
Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . 14
SECTION 104. Notices, etc., to Trustee and Company . . . . . . . . . . . . 15
SECTION 105. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 15
SECTION 106. Conflict with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 107. Effect of Headings and Table . . . . . . . . . . . . . . . . 16
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 17
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . 17
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 17
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 113. No Security Interest Created. . . . . . . . . . . . . . . . . 18
SECTION 114. Liability Solely Corporate. . . . . . . . . . . . . . . . . . 18
ARTICLE TWO
DEBT SECURITY FORMS
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SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 20
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 303. Execution, Authentication,
Delivery and Dating . . . . . . . . . . . . . . . . . . . . 25
SECTION 304. Temporary Debt Securities;
Exchange of Temporary Global
Notes for Definitive Bearer
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 305. Registration, Transfer and Exchange . . . . . . . . . . . . . 35
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 307. Payment of Interest; Interest
Rights Preserved. . . . . . . . . . . . . . . . . . . . . . 39
SECTION 308. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 309. Computation of Interest . . . . . . . . . . . . . . . . . . . 43
SECTION 310. Currency Debt Securities. . . . . . . . . . . . . . . . . . . 43
SECTION 311. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 312. Exchange Upon Default . . . . . . . . . . . . . . . . . . . . 48
ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . 48
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . . 50
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 502. Acceleration of Maturity;
Rescission and Annulment. . . . . . . . . . . . . . . . . . 51
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 54
SECTION 505. Trustee May Enforce Claims
Without Possession of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . 55
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 55
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Enforce
Conversion Rights . . . . . . . . . . . . . . . . . . . . . 56
SECTION 509. Restoration of Rights and
Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . 57
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 57
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . 57
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 58
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SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 58
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . 59
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and
Responsibilities. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . 60
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 60
SECTION 604. Not Responsible for Recitals or
Issuance of Debt Securities . . . . . . . . . . . . . . . . 61
SECTION 605. May Hold Debt Securities. . . . . . . . . . . . . . . . . . . 62
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 62
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . 62
SECTION 608. Disqualification; Conflicting Interest. . . . . . . . . . . . 63
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . 63
SECTION 610. Resignation and Removal;
Appointment of Successor. . . . . . . . . . . . . . . . . . 64
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . . 65
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . 67
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 614. Appointment of Authenticating
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE SEVEN
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HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders. . . . . . . . . . . . . . . . . . 70
SECTION 702. Preservation of Information;
Communication to Holders. . . . . . . . . . . . . . . . . . 70
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . 72
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 802. Proof of Ownership; Proof of
Execution of Instruments by
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 803. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 74
SECTION 804. Revocation of Consents; Future
Holders Bound . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 901. Purposes of Meetings. . . . . . . . . . . . . . . . . . . . . 75
SECTION 902. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . 76
SECTION 903. Call of Meetings by Company or Holders. . . . . . . . . . . . 76
SECTION 904. Qualifications for Voting . . . . . . . . . . . . . . . . . . 76
SECTION 905. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 906. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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SECTION 907. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . 78
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 1001. Company May Consolidate, etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . . . . 78
SECTION 1002. Successor Corporation
Substituted . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without
Consent of Holders. . . . . . . . . . . . . . . . . . . . . 80
SECTION 1102. Supplemental Indentures With
Consent of Holders. . . . . . . . . . . . . . . . . . . . . 82
SECTION 1103. Execution of Supplemental Indentures. . . . . . . . . . . . . 83
SECTION 1104. Effect of Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1105. Conformity with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1106. Reference in Debt Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . 84
SECTION 1107. Notice of Supplemental Indenture. . . . . . . . . . . . . . . 84
ARTICLE TWELVE
COVENANTS
SECTION 1201. Payment of Principal, Premium and Interest. . . . . . . . . . 84
SECTION 1202. Payment of Additional Amounts . . . . . . . . . . . . . . . . 85
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SECTION 1203. Maintenance of Office or Agency . . . . . . . . . . . . . . . 87
SECTION 1204. Money for Debt Securities;
Payments To Be Held in Trust. . . . . . . . . . . . . . . . 89
SECTION 1205. Corporate Existence . . . . . . . . . . . . . . . . . . . . . 90
SECTION 1206. Purchase of Debt Securities by Company. . . . . . . . . . . . 90
SECTION 1207. Intentionally Deleted . . . . . . . . . . . . . . . . . . . . 91
SECTION 1208. Intentionally Deleted . . . . . . . . . . . . . . . . . . . . 91
SECTION 1209. Intentionally Deleted . . . . . . . . . . . . . . . . . . . . 91
SECTION 1210. Officers' Certificate as to
Default; Notice of Default. . . . . . . . . . . . . . . . . 91
SECTION 1211. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 91
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . . . . . 92
SECTION 1302. Tax Redemption; Special Tax Redemption. . . . . . . . . . . . 92
SECTION 1303. Election to Redeem; Notice to Trustee . . . . . . . . . . . . 95
SECTION 1304. Selection by Trustee of Debt
Securities to Be Redeemed . . . . . . . . . . . . . . . . . 95
SECTION 1305. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 96
SECTION 1306. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 98
SECTION 1307. Debt Securities Payable on
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 1308. Debt Securities Redeemed in Part. . . . . . . . . . . . . . . 99
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ARTICLE FOURTEEN
SINKING FUNDS
SECTION 1401. Applicability of Article. . . . . . . . . . . . . . . . . . . 100
SECTION 1402. Satisfaction of Mandatory Sinking
Fund Payments with Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 1403. Redemption of Debt Securities for
Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . 101
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Applicability of Article. . . . . . . . . . . . . . . . . . . 103
SECTION 1502. Defeasance Upon Deposit of Moneys
or U.S. Government Obligations. . . . . . . . . . . . . . . 103
SECTION 1503. Deposited Moneys and U.S
Government Obligations to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 1504. Repayment to Company. . . . . . . . . . . . . . . . . . . . . 106
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1601. Debt Securities Subordinate to
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 106
SECTION 1602. Reliance on Certificate of Liqui-
dating Agent; Further Evidence
as to Ownership of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 1603. Payment Permitted If No Default . . . . . . . . . . . . . . . 110
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SECTION 1604. Trustee Not Charged with
Knowledge of Prohibition. . . . . . . . . . . . . . . . . . 110
SECTION 1605. Trustee to Effectuate
Subordination . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 1606. Rights of Trustee as Holder of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 111
SECTION 1607. Article Applicable to Paying
Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 1608. Subordination Rights Not Impaired
by Acts or Omissions of the
Company or Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 112
ARTICLE SEVENTEEN
CONVERSION OF DEBT SECURITIES
SECTION 1701. Applicability of Article. . . . . . . . . . . . . . . . . . . 112
SECTION 1702. Exercise of Conversion Privilege. . . . . . . . . . . . . . . 113
SECTION 1703. Fractional Interests. . . . . . . . . . . . . . . . . . . . . 114
SECTION 1704. Adjustment of Conversion Price. . . . . . . . . . . . . . . . 115
SECTION 1705. Continuation of Conversion
Privilege in Case of Merger,
Consolidation or Sale of
Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 1706. Notice of Certain Events. . . . . . . . . . . . . . . . . . . 120
SECTION 1707. Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . 121
SECTION 1708. Company to Provide Stock. . . . . . . . . . . . . . . . . . . 121
SECTION 1709. Disclaimer of Responsibility for
Certain Matters . . . . . . . . . . . . . . . . . . . . . . 122
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SECTION 1710. Return of Funds Deposited for
Redemption of Converted Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 123
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A
EXHIBIT B
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<PAGE>
INDENTURE dated as of February __, 1995, between BARNETT BANKS, INC.,
a Florida corporation (hereinafter called the "Company"), having its principal
executive office at 50 North Laura Street, Jacksonville, Florida, 32202 and
Chemical Bank, a New York banking corporation (hereinafter called the
"Trustee"), having its Corporate Trust Office at 450 West 33rd Street, New York,
New York 10001.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness subordinated as to priority of
payment (herein generally called the "Debt Securities"), to be issued in one or
more series, as in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
2
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are
defined in those respective Articles.
"Act" when used with respect to any Holder has the meaning specified
in Section 801.
"Affected Security" has the meaning specified in Section 1302(b).
"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" has the meaning specified in Section 614.
<PAGE>
3
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in 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 in such city.
"Banking Subsidiary" means any Subsidiary organized under the laws of
the United States or of any state, commonwealth, territory or possession thereof
and which conducts a commercial, merchant or other banking business, or a trust
business.
"Bearer Security" means any Debt Security (with or without Coupons),
in the form established pursuant to Section 201, which is payable to bearer
(including any Global Note) and title to which passes by delivery only, but does
not include any Coupons.
"Board of Directors" means either the board of directors of the
Company, or any committee of that board duly authorized to act in respect
hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies in that Place of Payment
or other location are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 301.
<PAGE>
4
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres S.A.
"Code" means the Internal Revenue Code of 1986, as amended and as in
effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means the common stock, $2.00 par value, of the Company
as the same exists on the date of execution and delivery of this Indenture or as
such stock may be reconstituted.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 310(i).
"Consolidated Banking Assets" means all assets owned directly or
indirectly by a Banking Subsidiary and reflected on the Company's consolidated
balance sheet prepared in accordance with generally accepted accounting
principles applicable to banks and banks holding companies.
"Controlled Subsidiary" means any Subsidiary more than 80% of the
outstanding shares of the Voting Stock of
<PAGE>
5
which is at the time owned directly or indirectly by the Company or by one or
more Controlled Subsidiaries or by the Company and one or more Controlled
Subsidiaries.
"Conversion Agent" means any Person authorized by the Company to
accept Debt Securities for conversion hereunder on behalf of the Company.
"Conversion Date" has the meaning specified in Section 310(e).
"Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and for
the settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency unit
other than the ECU to be used for the purposes for which it was established.
"Conversion Price" has the meaning specified in Section 1704.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this instrument is
located at 450 West 33rd Street, New York, New York, 10001.
The term "corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest coupon appertaining to any Bearer
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" mean Dollars or Foreign Currency.
<PAGE>
6
"Date of Conversion" has the meaning specified in Section 1702.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities (including any Global
Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Discharged" has the meaning specified in Section 1502.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time of payment is legal tender for
the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 310(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 310(g).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 310(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
<PAGE>
7
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Agent" means the New York Clearing House bank, if any,
from time to time selected by the Trustee for purposes of Section 310; provided
that such agent shall accept such appointment in writing and the terms of such
appointment shall be acceptable to the Company and shall, in the opinion of the
Company at the time of such appointment, require such agent to make the
determinations required by this Indenture by a method consistent with the method
provided in this Indenture for the making of such decision or determination.
"Event of Default" has the meaning specified in Section 501.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate (excluding amounts payable pursuant to
Section 1202 or 1302).
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index or any other index specified pursuant to Section 301.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency unit
the value of which is determined by reference to the values of the currencies of
any group of countries.
"Global Note" means a Registered or Bearer Security evidencing all or
part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or
<PAGE>
8
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and, unless the context otherwise requires,
shall include the terms of a particular series of Debt Securities as established
pursuant to Section 301.
The term "interest", when used with respect to a Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity and, when used with respect to a Bearer Security, includes any
additional amounts payable on such Bearer Security pursuant to Section 1202 or
1302.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Last Sale Price" has the meaning specified in Section 1703.
"Major Constituent Bank" means any Banking Subsidiary, the
Consolidated Banking Assets of which constitute 10% or more of the Company's
Consolidated Banking Assets.
"Market Exchange Rate" means (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency. In the event
of the unavailability of any of the
<PAGE>
9
exchange rates provided for in the foregoing clauses (i), (ii) and (iii) the
Exchange Rate Agent, if any, or if there shall not be a Exchange Rate Agent,
then the Trustee, shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City, London or other principal market for such Currency or Currency unit in
question, or such other quotations as the Exchange Rate Agent or the Trustee, as
the case may be, shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if any, or if there shall not be a Exchange Rate Agent,
then by the Trustee, if there is more than one market for dealing in any
Currency or Currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency or Currency unit
shall be that upon which a nonresident insurer of securities designated in such
Currency or Currency unit would purchase such Currency or Currency unit in order
to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder thereof or otherwise.
"Mortgage" means any mortgage, lien, pledge or other encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company) or an Affiliate of
the Company and who shall be satisfactory to the Trustee, which is delivered to
the Trustee.
<PAGE>
10
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities and any coupons thereto
appertaining: provided, however, that if such Debt Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Debt Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company; and
(iv) Debt Securities converted into Common Stock pursuant hereto and,
for purposes of selection for redemption, Debt Securities not deemed
Outstanding pursuant to Section 1304;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such Act, only Debt
Securities which the Trustee knows to be so owned shall be so disregarded, Debt
<PAGE>
11
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 to act with respect to such Debt Securities and that the pledgee
is not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Debt Securities have
performed any Act hereunder, the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purpose 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 502 and the principal amount of a Debt Security denominated
in a Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 310(k).
"Overdue Rate", when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 301.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"permanent Global Note" shall have the meaning given such term in
Section 304.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as specified
pursuant to Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or
<PAGE>
12
a portion of the same debt as that evidenced by such particular Debt Security;
and, for the purposes of this definition, any Debt Security authenticated and
delivered under Section 306 in lieu of a mutilated, lost, destroyed or stolen
Debt Security or a Debt Security to which a mutilated, lost, destroyed or stolen
Coupon appertains shall be deemed to evidence the same debt as the mutilated,
lost, destroyed or stolen Debt Security or the Debt Security to which the
mutilated, lost, destroyed or stolen Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 301, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 201 which is registered as to principal and interest in the
Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date specified
for the purpose pursuant to Section 301 for such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by it to administer its corporate trust matters.
<PAGE>
13
"Restricted Period" shall have the meaning as set forth in U.S.
Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7).
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305(a).
"Senior Indebtedness" means the principal of and premium, if any, and
interest on all indebtedness of the Company for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter created,
assumed or incurred, except (x) obligations evidenced by the Debt Securities,
(y) the Company's existing subordinated indebtedness, and (z) such other
indebtedness of the Company as is by its terms expressly stated to be not
superior in right of payment to the Debt Securities or to rank PARI PASSU in
right of payment with the Debt Securities, (ii) whether outstanding on the date
of this Indenture or thereafter created, assumed or incurred, all indebtedness
of the Company for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements,
other than obligations which, by their terms, are expressly stated (x) to be not
superior in right of payment to the Debt Securities or (y) to rank PARI PASSU in
right of payment with the Debt Securities and (iii) any deferrals, renewals or
extensions of any such Senior Indebtedness. The term "indebtedness of the
Company for money borrowed" means any obligation of, or any obligation
guaranteed by, the Company for the repayment of money borrowed, whether or not
evidenced by bonds, debentures, notes or other written instruments, and any
deferred obligation for payment of the purchase price of property or assets.
For purposes of this definition, "claim" shall have the meaning assigned thereto
in Section 101(4) of the Bankruptcy Code of 1978, as amended and in effect on
the date of execution of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 310(i).
<PAGE>
14
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon means
the date specified in such Debt Security or the Coupon, if any, representing
such installment of interest, as the date on which the principal of such Debt
Security or such installment of principal, premium or interest is due and
payable.
"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 other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock having voting power for the election of directors, whether at all times or
only for so long as no senior class of stock has such voting power by reason of
any contingency.
"Tangible Stockholders' Equity" as of any date means the aggregate of
(i) capital (including all preferred stock, common stock and capital surplus)
and (ii) retained earnings, after deducting intangibles (other than goodwill,
net of accumulated amortization, existing as of December 31, 1988), any contra-
equity account, and the cost of shares of capital stock held in treasury, all as
would be shown on a consolidated balance sheet of the Company and its
subsidiaries as of such date prepared in accordance with generally accepted
accounting principles.
"Temporary Global Note" shall have the meaning given such term in
Section 304.
"Trading Day" has the meaning specified in Section 1703.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of such series.
<PAGE>
15
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 1105.
"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 (including the Commonwealth of Puerto Rico).
"United States Alien" means any person who, as to the United States,
is a foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more
members of which is, as to the United States, a foreign corporation, a non-
resident alien individual or a non-resident alien fiduciary of a foreign estate
or trust.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 301 until
a successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Debt Securities of any series shall mean the U.S. Depositary with respect to
the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 1502.
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 310(d).
<PAGE>
16
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be, whether or
not designated by a number or word or words added before or after the title
"Vice President".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at the
time, directly or indirectly, owned by the Company, or by one or more Wholly-
Owned Subsidiaries of the Company, or by the Company and one or more Wholly-
Owned Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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17
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to
Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable car should know, that the certificate of opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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18
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Notices, etc., to Trustee and
Company.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, (attention: Corporate Trust Trustee
Administration), or
(2) The Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid or airmail postage
prepaid if sent from outside the United States, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this instrument, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 105. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Registered Holders (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to such Registered Holders as their names and addresses appear
in the Security Register, within the time prescribed, and (2) such notice shall
be sufficiently given
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19
to Holders of Bearer Securities or Coupons (unless otherwise herein expressly
provided) if published at least twice in an Authorized Newspaper or Newspapers
in The City of New York and, if Debt Securities of such series are then listed
on The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, in a daily newspaper in London
or Luxembourg or in such other city or cities specified pursuant to Section 301
or in any Debt Security on Business Days, the first such publication to be not
earlier than the earliest date and not later than two Business Days prior to the
latest date prescribed for the giving of such notice: provided, however, that,
in any case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 301, shall be sufficiently given if given in the manner
specified pursuant to Section 301.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder, shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
<PAGE>
20
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 106. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 107. 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 108. Successors and Assigns.
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Debt 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.
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21
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express or
implied shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture, the Debt Securities and the Coupons shall be deemed to
be contracts made and to be performed entirely in the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State without regard to the conflicts of law rules of said State.
SECTION 112. Legal Holidays.
Unless otherwise specified pursuant to Section 301 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
SECTION 113. No Security Interest Created.
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and
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22
in effect in any jurisdiction where property of the Company or its Subsidiaries
is or may be located.
SECTION 114. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), 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 agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, stockholder, officer or director, past,
present or future, of the Company (or any incorporator, stockholder, officer or
director of any such predecessor or successor corporation), either directly or
indirectly through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Debt Securities or Coupons or to be implied herefrom or
therefrom; and that any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issue of Securities; provided, however, that nothing
herein or in the Debt Securities or Coupons contained shall be taken to prevent
recourse to and the enforcement of the liability, if any, of any stockholder or
subscriber to capital stock upon or in respect of the shares of capital stock
not fully paid.
<PAGE>
23
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and 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 or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation or any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 303 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form (other than in global form) shall have coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which such series of Debt
Securities may be listed, all as
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24
determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
CHEMICAL BANK
as Trustee
By_________________________________
Authorized Officer
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in
Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and (subject to Section 303)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series:
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25
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 304, 305, 306, 1106 or
1308);
(3) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and premium, if
any, on) the Debt Securities of such series are or may be payable (which,
if so provided in such Board Resolution or supplemental indenture may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time);
(4) the rate or rates (or the method of determination thereof) at
which the Debt Securities of the series shall bear interest, if any, and
the dates from which such interest shall accrue (which, in either case or
both, if so provided in such Board Resolution or supplemental indenture may
be determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time), the Interest Payment
Dates on which such interest shall be payable (or the method of
determination thereof), and, in the case of Registered Securities, the
Regular Record Dates for the interest payable on such Interest Payment
Dates and, in the case of Floating Rate Securities, the notice, if any, to
Holders regarding the determination of interest and the manner of giving
such notice, and the extent to which, or the manner in which, any interest
payable on any Global Note on an Interest Payment Date will be paid if
other than in the manner provided in Section 307;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in
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26
the case of Registered Securities) or the principal London office of the
Trustee (in the case of Bearer Securities), where the principal of (and
premium, if any) and interest on Debt Securities of the series shall be
payable;
(6) the obligation, if any, of the Company to redeem or purchase Debt
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder and the period or periods within
which or the dates on which, the prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(7) the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon which Debt
Securities of the series may be redeemed, if any, in whole or in part, at
the option of the Company or otherwise;
(8) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 304);
(9) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) provisions, if any, for the defeasance of Debt Securities of the
series;
(11) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, the applicable certification procedures pursuant to
Section 304(d), whether Coupons will be attached
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27
thereto, whether Bearer Securities of the series may be exchanged for
Registered Securities of the series, or whether Registered Securities of
the series may be exchanged for Bearer Securities of the series, as
provided in Section 305(b) or otherwise and the circumstances under which
and the place or places at which any exchanges, if permitted, may be made;
(12) whether the provisions of Section 1202 and 1302 or other
provisions for payment of additional amounts of tax redemptions shall apply
and, if other provisions shall apply, such other provisions, whether a
procedure other than that set forth in Section 304(b) shall apply and, if
so, such other procedure, and if the procedure set forth in Section 304(b)
shall apply, the forms of certifications to be delivered under such
procedure;
(13) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated, or in which
payment of the principal of (and/or premium, if any) and/or interest on the
Debt Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or proxy
to one vote for purposes of Section 905;
(14) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are denominated or payable without such election, in addition or
in lieu of the provisions of Section 310, the period or periods within
which and the terms and conditions upon which, such election may be made
and the time and the manner of determining the exchange rate or rates
between the Currency or Currencies in which the Debt Securities are
denominated or payable without such election and the Currency or Currencies
in which the Debt Securities are to be paid if such election is made;
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28
(15) the date as of which any Bearer Securities of the series and any
global Debt Security representing any Outstanding Debt Securities of the
series shall be dated if other than the date of original issuance of the
first Debt Security of the Series to be issued;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
(17) if the Debt Securities of the series denominated or payable in a
Foreign Currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(18) the designation of the original Exchange Rate Agent;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 701;
(21) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series; and
(22) if Bearer Securities of the series are to be issued, in addition
to or in substitution for the provisions set forth in Sections 303, 304 and
305, (x) whether interest in respect of any portion of a temporary Debt
Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of any Interest Payment Date
prior to the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid
<PAGE>
29
to any clearing organization with respect to the portion of such temporary
Debt Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to
the Persons entitled to interest payable on such Interest Payment Date, and
(y) the terms upon which interests in such temporary Debt Security in
global form may be exchanged for interests in a permanent Global Note or
for definitive Debt Securities of the series and the terms upon which
interests in a permanent Global Note, if any, may be exchanged for
definitive Debt Securities of the series;
(23) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
(24) whether the Debt Securities will be convertible into Common
Stock and, if so, the terms and conditions upon which such conversion will
be effected including the initial Conversion Price or rate, the conversion
period and other provisions in addition to or in lieu of those described
herein; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 303) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be
<PAGE>
30
reopened for issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
In the absence of any specification pursuant to Section 301 with
respect to Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, its President, one of its
Vice Presidents or its Treasurer, under its corporate seal reproduced thereon
and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and
<PAGE>
31
Coupons and the Trustee in accordance with the Company Order shall authenticate
and make available for delivery such Debt Securities and Coupons: PROVIDED,
HOWEVER, that no Bearer Security that has been sold during the Restricted Period
shall be mailed or otherwise delivered to any location in the United States; and
provided, further, that a Bearer Security may be delivered by the Company in
definitive form only if the Person entitled to receive such Bearer Security
shall have furnished a certificate substantially in the form set forth in
Exhibit A to this Indenture. If all the Debt Securities of any one series are
not to be issued at one time and if a Board Resolution or supplemental indenture
relating to such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Debt Securities
such as interest rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue. If any Debt Security shall be represented by a
permanent Global Note, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of such
Debt Security or upon exchange of a portion of a temporary Global Note shall be
deemed to be delivery in definitive form by the Company of such beneficial
owner's interest in such permanent Global Note. Except as permitted by Section
306 or 307, the Trustee shall not authenticate and deliver any Bearer Security
unless all Coupons for interest then matured have been detached and cancelled.
Subject to the second succeeding paragraph, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, prior to the authentication and delivery of the Debt Securities
and Coupons of such series, (i) the supplemental indenture or the Board
Resolution by or pursuant to which the form and terms of such Debt Securities
and Coupons have been approved, (ii) an Officers' Certificate as to the absence
of any event which is, or after notice or lapse of time or both would become, an
Event of Default, and (iii) an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities and
Coupons conform to the requirements of this Indenture and, in the case of
<PAGE>
32
an underwritten offering of such Debt Securities, constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt
Securities and Coupons, or, in the case of a continuous offering of such
Debt Securities, upon delivery of such additional instruments specified in
the Company Order delivered pursuant to this Section 303, will constitute
sufficient authority hereunder for the Trustee to authenticate and deliver
such Debt Securities and Coupons;
(2) in the case of an underwritten offering of a series of Debt
Securities, the forms and terms of such Debt Securities and Coupons have
been established in conformity with the provisions of this Indenture, or,
in the case of a continuous offering of a series of Debt Securities, the
forms and terms of any such Debt Security, when completed in accordance
with the Company Order delivered pursuant to this Section 303, will have
been established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities and
Coupons have been established in a supplemental indenture, the execution
and delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture has
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes the
legally valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to the
availability of the equitable remedies of specific performance or
injunctive relief being subject to the discretion of the court before which
any proceeding may be brought and subject to such other exceptions or
qualifications as counsel shall reasonably request;
(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all
<PAGE>
33
necessary corporate action of the Company; in the case of an underwritten
offering of a series of Debt Securities, such Debt Securities and Coupons
have been duly executed by the Company, or, in the case of a continuous
offering of a series of Debt Securities, when the terms of any such Debt
Security are completed in accordance with the Company Order delivered
pursuant to this Section 303 and such Debt Security is duly executed by the
Company, and, in either case, assuming due authentication by the Trustee
and delivery by the Company, such Debt Securities constitute, or will
constitute, as the case may be, the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
entitled to the benefit of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to the
availability of the equitable remedies of specific performance or
injunctive relief being subject to the discretion of the court before which
any proceeding may be brought and subject to such other exceptions or
qualifications as counsel shall reasonably request;
(5) all laws and requirements in respect of the execution and
delivery by the Company of such Debt Securities have been complied with;
and
(6) the amount of Debt Securities Outstanding of such series,
together with the amount of the Debt Securities to be authenticated
pursuant to the Company Order delivered pursuant to this Section 303, does
not exceed any limit established under the terms of this Indenture on the
amount of Debt Securities of such series that may be authenticated and
delivered.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
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34
Notwithstanding the provisions of Section 301 and of the second
preceding paragraph, if all Debt Securities of a series are to be offered on a
continuous basis, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301, the Company Order or the Opinion of
Counsel otherwise required pursuant to such second preceding paragraph at or
prior to the time of authentication of each such Debt Security if such documents
are delivered at or prior to the time of authentication upon original issuance
of the first such Debt Security to be issued.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary, or permanent or
definitive Bearer Security in global form) shall be dated as of the date of
original issuance of the first Debt Security of such series to be issued, except
as otherwise provided pursuant to Section 301 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 308 together with a written statement (which need not
comply with Section 102) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Debt Securities; Exchange
of Temporary Global Notes for
Definitive Bearer Securities.
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35
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Registered Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination for Registered Securities of such
series, substantially of the tenor of the definitive Registered Securities in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Registered
Securities may determine, as conclusively evidenced by their execution of such
Registered Securities. Every such temporary Registered Security shall be
executed by the Company and shall be authenticated and made available for
delivery by the Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Registered Securities in
lieu of which they are issued. In the case of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form, representing
such of the Outstanding Debt Securities of such series as shall be specified
therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 305 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations and of a like Stated
Maturity and like terms and provisions; provided, however, unless otherwise
specified pursuant to Section 301, that no
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36
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
(including a definitive Bearer Security in global form) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary Registered
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 301, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date which is 40 days after the closing of the sale of
Debt Securities (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes without interest coupons. On
or after the Exchange Date such temporary Global Note shall be surrendered by
the Common Depositary to the Trustee, as the Company's agent for such purpose,
at its principal office in London (or at such other place specified outside the
United States pursuant to Section 301) and following such surrender, the Trustee
shall (1) endorse the temporary Global Note to reflect the
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37
reduction of its principal amount by an equal aggregate principal amount of such
permanent Global Note, (2) endorse the applicable permanent Global Note, if any,
to reflect the initial amount, or an increase in the amount of Debt Securities
represented thereby, (3) manually authenticate such definitive Debt Securities
or such permanent Global Note, as the case may be, (4) deliver such definitive
Debt Securities or such permanent Global Note to the Common Depositary to be
held outside the United States for the accounts of the Euro-clear Operator or
CEDEL, as the case may be, for credit to the respective accounts at Euro-clear
Operator or CEDEL, as the case may be, designated by or on behalf of the
beneficial owners of such Debt Securities (or to such other accounts as they may
direct) and (5) redeliver such temporary Global Note to the Common Depositary,
unless such temporary Global Note shall have been cancelled in accordance with
Section 308 hereof; provided, however, that, unless otherwise specified in such
temporary Global Note, in the case of definitive Debt Securities or a permanent
Global Note to be delivered in bearer form, upon such presentation by the Common
Depositary, such temporary Global Note shall be accompanied by a certificate
dated the Exchange Date, or a subsequent date and signed by the Euro-clear
Operator, as to the portion of such temporary Global Note held for its account
then to be exchanged for definitive Debt Securities or one or more permanent
Global Notes, as the case may be, and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities,
or one or more permanent Global Notes, as the case may be, each substantially in
the form set forth in Exhibit B to this Indenture. Each certificate
substantially in the form of Exhibit B hereto of the Euro-clear Operator or
CEDEL, as the case may be, shall be based on certificates of the account holders
listed in the records of the Euro-clear Operator or CEDEL, as the case may be,
as being entitled to all or any portion of the applicable temporary Global Note.
An account holder of the Euro-clear Operator or CEDEL, as the case may be,
desiring to effect the exchange of an interest in a temporary Global Note for an
interest in definitive Debt Securities or one or more permanent Global Notes
shall instruct the Euro-clear Operator or CEDEL, as the case may be, to request
such exchange on its behalf and shall deliver to the Euro-clear Operator or
CEDEL,
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38
as the case may be, a certificate substantially in the form of Exhibit A hereto
and dated no earlier than 15 days prior to the Exchange Date. Until so
exchanged, temporary Global Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities and permanent Global
Notes of the same series authenticated and delivered hereunder, except as to
payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee shall authenticate and make available for delivery, in
exchange for each portion of such temporary Global Note or such permanent Global
Note, an equal aggregate principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and with
like terms and conditions, as the portion of such temporary Global Note or such
permanent Global Note to be exchanged, which, unless the Debt Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as contemplated by Section 301, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; PROVIDED, HOWEVER, that definitive Bearer Securities
shall be delivered in exchange for a portion of the temporary Global Note only
in compliance with the requirements of the second preceding paragraph. On or
prior
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39
to the forty-fifth day following receipt by the Trustee of such notice with
respect to a Debt Security (and receipt of appropriate certification referred to
in the second preceding paragraph, in the case of definitive Bearer Securities
to be received in exchange for a portion of the temporary Global Note, or, if
such day is not a Business Day, the next succeeding Business Day, the temporary
Global Note or the permanent Global Note, as the case may be, shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Debt Securities without charge following such surrender, upon the
request of the Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the permanent Global
Note to reflect the reduction of its principal amount by the aggregate principal
amount of such Debt Security, (2) cause the terms of such Debt Security and
Coupons, if any, to be entered on a definitive Debt Security, (3) manually
authenticate such definitive Debt Security, and (4) deliver such definitive Debt
Security outside the United States to the Euro-clear Operator or CEDEL, as the
case may be, for or on behalf of the beneficial owner thereof, in exchange for a
portion of such temporary Global Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary Global Note or
the permanent Global Note shall be delivered only outside the United States.
Notwithstanding the foregoing, in the event of redemption or acceleration of all
or any part of a temporary Global Note prior to the Exchange Date, a permanent
Global Note or definitive Bearer Securities, as the case may be, will not be
issuable in respect of such temporary Global Note or such portion thereof, and
payment thereon will instead be made as provided in such temporary Global Note.
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40
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the date of receipt by the Trustee of the certification
described in the fourth preceding paragraph of this Section 304(b) substantially
in the form of Exhibit B hereto shall be payable to the Euro-clear Operator or
CEDEL on such Interest Payment Date only upon delivery by the Euro-clear
Operator or CEDEL to the Trustee of a certificate or certificates substantially
in the form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Note on such
Interest Payment Date and who have each delivered to the Euro-clear Operator or
CEDEL, as the case may be, a certificate substantially in the form set forth in
Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
304.
(c) If the Company shall establish pursuant to Section 301 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 303 and the Company Order with respect to such
series, authenticate and make available for delivery one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Notes, (ii)
shall be registered in the name of the U.S. Depositary for such Global Note or
Notes or the nominee of such depositary, (iii) shall
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41
be delivered by the Trustee to such depositary or pursuant to such depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, this Debt Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
Notwithstanding any other provision of this Section or Section 305,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. 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 U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be registered or in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Debt Securities of such series. If a successor
U.S. Depositary for the Debt Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and make available for delivery, Registered
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
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42
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and make available for delivery, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 301 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and make available for delivery, without charge,
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, 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 Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall
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43
make such Debt Securities available for delivery to the persons in whose names
such Debt Securities are so registered.
(d) With respect to Exhibits A and B to this Indenture, the Company
may, in its discretion and if required or desirable under applicable law,
substitute one or more other forms of such exhibits for such exhibits, eliminate
the requirement that any or all certificates be provided, or change the time
that any certificate may be required, provided that such substitute form or
forms or notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with a Company Request and such form
or forms, elimination or change is reasonably acceptable to the Trustee.
SECTION 305. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; PROVIDED, HOWEVER, that
the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of such denominations as are authorized for Registered Securities of such series
and of a like Stated Maturity and with like terms and conditions.
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44
At the option of the Holder, Registered Securities of any series
(except Global Notes) may be exchanged for other Registered Securities of the
same series of like aggregate principal amount and of a like Stated Maturity and
with like terms and conditions, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Securities which
the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 301, the
provisions of this Section 305(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 301 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
PROVIDED, HOWEVER, that except as otherwise provided in Section 1203, interest
represented by Coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the
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45
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 of a like Stated Maturity and with like terms
and conditions 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 proposed
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 (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Registered Security or Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 301, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidenced the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
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46
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company, the Trustee and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 304(b) or 306. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 1304 and
ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part; PROVIDED, HOWEVER, that, unless otherwise specified pursuant
to Section 301, if any Bearer Securities of any series which pursuant to Section
305(b) or as otherwise provided pursuant to Section 301 are exchangeable for
Registered Securities are called for redemption pursuant to Section 1302, such
Bearer Security, to the extent permitted by applicable law, may be exchanged for
one or more Registered Securities of such series as provided in Section 305(b)
or otherwise during the period preceding any Redemption Date.
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Debt Securities.
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office (in the
case of
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47
Registered Securities) or at its principal London office (in the case of Bearer
Securities), or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice that such Debt
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall authenticate and make
available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Debt Security or in exchange for the Coupon Security
to which such mutilated, destroyed, lost or stolen coupon appertained, a new
Debt Security of the same series of like Stated Maturity and with like terms and
conditions and like principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with such Coupons attached
thereto that neither gain nor loss in interest shall result from such exchange
or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; PROVIDED, HOWEVER,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 1203, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.
Upon the issuance of any new Debt 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 respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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48
Every new Debt Security or Coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
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 Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Payment of
interest on Registered Securities shall be made at the offices of the Paying
Agent or Paying Agents specified pursuant to Section 301 or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if, and to the extent,
provided pursuant to Section 301, at the option of the Registered Holder by wire
transfer to an account designated by the Registered Holder.
(b) Subject to the certification requirements set forth in the fifth
paragraph of Section 304(b), interest on any Coupon Security which is payable
and is punctually paid or duly provided for on any Interest Payment Date shall
be paid to the Holder of the Coupon which has matured on such Interest Payment
Date upon surrender of such Coupon on such Interest Payment Date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 301.
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49
Subject to the certification requirements set forth in the fifth
paragraph of Section 304(b), interest on any Bearer Security (other than a
Coupon Security) which is payable and is punctually paid or duly provided for on
any Interest Payment Date shall be paid to the Holder of the Bearer Security
upon presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the principal London office of the Trustee or at such other
Place of Payment outside the United States specified pursuant to Section 301.
Unless otherwise specified pursuant to Section 301, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, payment on
such Bearer Security or Coupon will be made by check drawn on a bank in The City
of New York or, if agreeable to the Trustee, by wire transfer to a Dollar
account maintained by such Holder outside the United States. If such payment at
the offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 301, at the
direction of the Holder of any Bearer Security or Coupon payable in a Foreign
Currency, payment on such Bearer Security or Coupon will be made by a check
drawn on a bank outside the United States or by wire transfer to an appropriate
account maintained by such Holder outside the United States. Except as provided
in this paragraph, no payment on any Bearer Security or Coupon will be made by
mail to an address in the United States or by wire transfer to an account in the
United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
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50
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names 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 such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency or Currency unit in which the Debt Securities of such
series are payable (except as otherwise specified pursuant to Sections 301
or 310) 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 date shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the
Holders of such Registered Securities at their address as they appear in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 105
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 308. Cancellation.
Unless otherwise specified pursuant to Section 301 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Registered Securities and
matured coupons so delivered shall be promptly cancelled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be cancelled or held
for reissuance. Bearer Securities and unmatured Coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant
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52
to Section 305 or in replacement of mutilated, lost, stolen or destroyed Bearer
Securities of the same series and of like Stated Maturity and with like terms
and conditions or the related Coupons pursuant to Section 306. All Bearer
Securities and unmatured Coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Debt Securities or Coupons previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Debt Securities previously
authenticated hereunder which the Company has not issued, and all Debt
Securities or Coupons so delivered shall be promptly cancelled by the Trustee.
No Debt Securities or coupons shall be authenticated in lieu of or in exchange
for any Debt Securities or Coupons cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Debt Securities and
Coupons held by the Trustee shall be delivered to the Company upon Company
Request. The acquisition of any Debt Securities or Coupons by the Company shall
not operate as a redemption or satisfaction of the indebtedness represented
thereby unless and until such Debt Securities or Coupons are surrendered to the
Trustee for cancellation. In the case of any temporary Global Note which shall
be destroyed if the entire aggregate principal amount of the Debt Securities
represented thereby has been exchanged, the certificate of destruction shall
state that all certificates required pursuant to Section 304 hereof and
substantially in the form of Exhibit B hereto, to be given by the Euro-clear
Operator or CEDEL, have been duly presented to the Trustee by the Euro-clear
Operator or CEDEL, as the case may be. Permanent Global Notes shall not be
destroyed until exchanged in full for definitive Debt Securities or until
payment thereon is made in full.
SECTION 309. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
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53
SECTION 310. Currency Debt Securities.
(a) Except as otherwise specified pursuant to Section 301 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 301 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has been given by the Company
pursuant to Article Thirteen). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount due on the
applicable
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54
payment date in the relevant Currency as provided in paragraph (b) of this
Section 310.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 301, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities are payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. The Currency amount receivable by Holders of
Registered Securities who have elected payment in a Currency as provided in
paragraph (c) above shall be determined by the Exchange Rate Agent on the basis
of the applicable Market Exchange Rate in effect on the second Business Day (the
"Valuation Date") immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Foreign
Currency, the ECU or such other Currency unit occurring after the last date on
which such Foreign Currency, the ECU or such other Currency Unit was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for use on each
such payment date. The Dollar amount to be paid by the Company to the Trustee
and by the Trustee or any Paying Agent to the Holders of such Registered
Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a Currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Exchange Rate Agent, if
any, or, if there shall not be a Exchange Rate Agent, then by the Trustee, in
the manner provided in paragraph (g) or (h) below.
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55
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 310.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent, if any, or, if there shall not be a
Exchange Rate Agent, then by the Trustee, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent, if any, or, if there shall not be a Exchange Rate
Agent, then by the Trustee, and subject to the provisions of paragraph (i)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(i) For purposes of this Section 310 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a Component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or
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56
multiplied in the same proportion. If after the Conversion Date two or
more Component Currencies are consolidated into a single Currency, the
respective Specified Amounts of such Component Currencies shall be replaced
by an amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in
such single Currency, and such amount shall thereafter be a Specified
Amount and such single Currency shall thereafter be a Component Currency.
If after the Conversion Date any Component Currency shall be divided into
two or more Currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more Currencies with
appropriate Dollar equivalents at the Market Exchange Rate on the date of
such replacement equal to the dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such date,
and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If, after the Conversion Date of
the relevant Currency unit, including but not limited to, the ECU, a
Conversion Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component Currency of
such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if
within 16 or fewer days prior to the Maturity) immediately preceding the
Maturity, and with respect to any series of Debt Securities whose record
date immediately preceding the Maturity is more than 16 days prior to the
maturity or any series of Debt Securities for which no record dates are
provided with respect to interest payments, shall mean the date which is 16
days prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Exchange
Rate Agent, if any, regarding the
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Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit and the Market Exchange Rate shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders of the Debt Securities denominated or
payable in the relevant Currency. In the event of a Conversion Event with
respect to a Foreign Currency, the Company, after learning thereof, will
immediately give written notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 105 to the
Holders) specifying the Conversion Date. In the event of a Conversion Event
with respect to the ECU or any other Currency in which Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 105 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent, if any, and shall not otherwise have any duty or obligation to determine
such information independently.
(k) For purposes of any provision of the Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the original issue date of the applicable Debt Securities, in relation to an
entitlement to perform such Act, or as of the date of such decision or
determination by the Trustee, as the case may be.
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58
SECTION 311. Judgments.
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 311 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency unit due hereunder
or under such Debt Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Debt Security so that in any event the Company's obligations hereunder or
under such Debt Security will be effectively maintained as obligations in such
Currency, and the Company shall be entitled to withhold (or be reimbursed for,
as the case may be) any excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of payment or
distribution.
SECTION 312. Exchange Upon Default.
If default is made in the payments referred to in Sections 1201 or
1202, the Company hereby undertakes that upon presentation and surrender of a
permanent Global Note to the Trustee (or to any other Person or at any other
address as the Company may designate in writing), on any Business Day
<PAGE>
59
on or after the maturity date thereof the Company will issue and the Trustee
will authenticate and deliver to the bearer of such permanent Global Note duly
executed and authenticated definitive Debt Securities with the same issue date
and maturity date as set out in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 305, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
1307, and (iv) Debt Securities and Coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
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discharged from such trust, as provided in Section 1204) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation.
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by
the Trustee in the name, and at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii) of this subclause (B), has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which such Debt Securities are denominated (except as otherwise
provided pursuant to Sections 301 or 310) sufficient to pay and
discharge the entire indebtedness on such Debt Securities for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Debt Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be; provided, however, in the event a petition for relief under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar
law, is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to
the Company, the obligations of the Company under this Indenture with
respect to such Debt Securities shall not be deemed terminated or
discharged:
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company:
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Company has received from or there has been published by the
Internal Revenue Service a ruling to the effect that Holders of the Debt
Securities of the series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1204, shall survive. If, after the deposit referred to in
Section 401 has been made, (x) the Holder of a Debt Security is entitled to, and
does, elect pursuant to Section 310(c), to receive payment in a Currency other
than that in which the deposit pursuant to Section 401 was made, or (y) if a
Conversion Event occurs with respect to the Currency in which the deposit was
made or elected to be received by the Holder pursuant to Section 310(c), then
the indebtedness represented by such Debt Security shall be fully discharged to
the extent that the deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1204, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
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 (and
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62
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Sixteen or be voluntary or involuntary or be effected by
operation of law, pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereinafter in
effect, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days;
(2) the commencement by the Company of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other
similar law now or hereinafter in effect, or the consent by the
Company to the entry of a decree or order for relief in an involuntary
case under any such law; or
(3) if specified in the resolution adopted by the Board of
Directors with respect to Debt Securities of a series, any other Event
of Default provided with respect to Debt Securities of such series.
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63
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of Outstanding
Debt Securities of such series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities, such portion of the principal
amount of such Discount Securities as may be specified in the terms of such
Discount Securities) of all the Debt Securities of such series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders) and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. Upon payment of
such amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Sections 301 or 310), all obligations
of the Company in respect of the payment of principal of the Debt Securities of
such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Sections 301 or 310) sufficient to pay
(A) all overdue installments of interest on all Debt Securities
or all overdue payments with respect to any Coupons of such series;
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of
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acceleration and interest thereon at the rate or rates prescribed
therefor in such Debt Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
or upon overdue payments on any Coupons at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; provided, however, that all sums
payable under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof,
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(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Debt Securities or any series, or
(4) default is made in the performance, or a 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 expressly has been included
in this Indenture solely for the benefit of Debt Securities of a series
other than such series) occurs, and such default or breach continues 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 Debt
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount 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 Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by
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law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons 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 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such
series pursuant to a declaration in accordance with Section 502)(and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
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the Holders of such Debt Securities and Coupons 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, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each such
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 such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid;
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities or
Coupons of such series, in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debt Securities
or Coupons for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security or Coupon of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
507, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Enforce Conversion
Rights.
Notwithstanding any other provision in this Indenture, but subject to
Article Sixteen, the Holder of any Debt Security or of any Coupon shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 307) interest on such Debt
Security or Coupon on the respective Stated Maturity or Maturities expressed in
such Debt Security or Coupon (or in the case of redemption, on the Redemption
Date), or, if applicable, to convert such security as provided in Article
Seventeen, or to institute suit for
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the enforcement of any such payment and interest thereon or for the enforcement
of any such right to convert, and such rights shall not be impaired without the
consent of the Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture 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.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction or would involve the Trustee in personal liability; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
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(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt 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 Debt 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 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit
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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 the
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series the Trustee shall
by the pertinent methods provided in Section 105 give notice to all Holders of
Debt Securities and Coupons of such series of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Debt Security or Coupon of such
series or in the payment of any sinking fund installment with respect to Debt
Securities of such series,
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the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Debt Securities
and of Coupons of such series; and provided, further, that in the case of any
default of the character specified in Section 503(5) with respect to Debt
Securities of such series no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to debt Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall
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be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture, at the request or
direction of any of the Holders of Debt Securities of any series pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
including a Exchange Rate Agent or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed, upon
advice of counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
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SECTION 604. Not Responsible for Recitals or
Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee, 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 Debt Securities or Coupons, and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and Trustee shall from time to time agree in writing
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);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify in Dollars each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based upon,
measured or determined by the income of the Trustee) arising out of or in
connection with the acceptance or administration of this trust or
performance of its duties hereunder including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder except to
the extent any such loss, damage, claim, liability or expense may be
attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of amounts due on
the Debt Securities and Coupons.
The obligations of the Company under this Section 607 shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture.
The Trustee for the purposes of this Section 607 shall include any
predecessor Trustee provided that the negligence or bad faith of any Trustee
shall not affect the rights of any other Trustee hereunder.
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SECTION 608. Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
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.
SECTION 609. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States 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 and having its Corporate Trust Office in the United States of
America. 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. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not
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have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointment by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) with respect
to the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to the Debt Securities of any series and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Debt Security of any series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 514, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Debt Securities
of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 105 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by
Successor.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series of which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any
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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 other trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
any such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided 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
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case any Debt Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Debt Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Debt Securities. In case any Debt
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 613. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Debt Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities
of each such series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent except that only the Trustee may
authenticate Debt Securities upon original
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issuance and pursuant to Section 306 hereof. Such Authenticating Agent shall at
all times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000 and subject to supervision or examination by federal or State
authority. 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 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 any 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 any Authenticating Agent,
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time and if it shall cease to be eligible shall
resign, by giving written notice of resignation to the applicable Trustee and to
the Company.
Upon receiving such a notice of resignation or upon such a termination
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 614 with respect to one or more
of all series of Debt Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of Debt Securities of such series in
the manner and to the extent provided in Section 105. Any successor
Authenticating Agent upon acceptance of its
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appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein. The Company agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services. The Authenticating Agent for the Debt Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
CHEMICAL BANK
As Trustee
By___________________________________
As Authenticating Agent
By___________________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the
Registered Securities of such series (or on semi-annual dates in each year
to be determined pursuant to Section 301 if the Registered Securities of
such series do not bear interest), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of the date 15 days next preceding each such Regular Record Date (or such
semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished.
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
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SECTION 702. Preservation of Information;
Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 701
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 703(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if is acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 703(c)(2).
(b) If three or more Holders (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 Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
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(ii) inform such applicants as to the approximate number of Holders of
Debt Securities of such series or of all Debt Securities as the case may
be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), 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
Debt Securities of such series or all Holders as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held
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accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 702(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing of any material pursuant to a
request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
To the extent that any such report is required by the Trust Indenture Act with
respect to any 12-month period, such report shall cover the 12-month period
ending March 15 and shall be transmitted by the next succeeding March 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Debt Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
SECTION 802. Proof of Ownership; Proof of
Execution of Instruments by Holders.
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other mark
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was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 301, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Section 601, 603 and 905, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agency proxy shall be sufficient and conclusive in
favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgement of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 906.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
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SECTION 803. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 307) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt security or Coupon.
SECTION 804. Revocation of Consents; Future
Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 801, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 802,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt Security and
all past, present and future Holders of Coupons, if any, appertaining thereto
and
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of any Debt Securities and Coupons issued on transfer or in lieu thereof or in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Debt Security or Coupons or such other Debt
Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 901. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 1102; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
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SECTION 902. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 901, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 105. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
SECTION 903. Call of Meetings by Company or
Holders.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 901, by giving notice thereof as provided in Section 902.
SECTION 904. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its
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counsel and any representatives of the Company and its counsel.
SECTION 905. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 903, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 301) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 902 or 903 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
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SECTION 906. Voting.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders 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 transmitted as provided in Section 902. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 907. No Delay of Rights by Meeting.
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture of the
Debt Securities of any series.
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ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 1001. Company May Consolidate, etc., Only
on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States or any State or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest on all the Debt Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) the corporation formed by such consolidation or into which the
Company shall have been merged or the Person to which such sale, lease or
other disposition shall have been made shall be a banking institution or a
bank holding company subject to Federal or State authority; and
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(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 1002. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1001, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Debt Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
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(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, 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 the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Outstanding Debt Security or Coupon of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision and as to which such supplemental indenture
would apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Articles Four or Fifteen,
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provided that any such action shall not adversely affect the interests of
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 201 and 301; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
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 the requirements
of Section 611; or
(10) to make any modifications, amendments or supplements to any
provision herein which modifications, amendments or supplements are
required pursuant to any amendment of the Trust Indenture Act of 1939
enacted, or any Rules promulgated thereunder, after the date hereof; or
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the execution
of such supplemental indenture in any material respect; or
(12) to provide for adjustment of conversion rights pursuant to
Section 1705.
SECTION 1102. Supplemental Indentures With Consent
of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt
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Securities of each series affected by such supplemental indenture voting
separately, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture of such Debt Securities; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or installment of
interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions for
any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date) or for the
enforcement of the right of conversion thereof, or materially and adversely
affect the right to convert the Debt Securities in accordance herewith, or
limit the obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section 1203,
or limit the obligation of the Company to redeem an Affected Security as
provided in Section 1302(b); or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the
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consent of whose Holders is required for any supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1211, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1211, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 1101(7).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
SECTION 1103. Execution of Supplemental
Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of
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such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a material way.
SECTION 1104. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 1105. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trustee Indenture Act as then in effect.
SECTION 1106. Reference in Debt Securities to
Supplemental Indentures.
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt securities and Coupons of such series.
SECTION 1107. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 1102, the Company
shall transmit, in the manner and to the extent provided in Section 105, to all
Holders of any
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series of the Debt Securities affected thereby, a notice setting forth in
general terms the substance of such supplemental indenture.
ARTICLE TWELVE
COVENANTS
SECTION 1201. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of each series of
Debt Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Debt Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several Coupons for such interest installments as are evidenced thereby as
they severally mature. The interest, if any, due in respect of any temporary
Global Note or permanent Global Note, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such Debt
Security, shall be payable, subject to the conditions set forth in Section 1202,
only upon presentation of such Debt Security to the Trustee for notation thereon
of the payment of such interest.
SECTION 1202. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this Section
1202 shall be applicable to Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay to the Holder of a Bearer Security or Coupon who is a United States
Alien such additional amounts as may be necessary so that every net payment on
such Bearer Security or Coupon, after withholding by the Company or the
designated paying agents for or on account of any present or future tax,
assessment of other governmental charge imposed upon or as a result of such
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payment by the United States (or any political subdivision or taxing authority
thereof or therein), will not be less than the amount provided in such Bearer
Security or Coupon to be then due and payable. However, the Company will not be
required to make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge that would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or such fiduciary, settlor, or beneficiary
of, or a person holding a power over, such Holder, if such Holder is an
estate or a trust, or a member of shareholder of such Holder, if such
Holder is a partnership or corporation) and the United States, including,
without limitation, such Holder (or such fiduciary, settlor, beneficiary,
person holding power, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's past or present status as a personal holding company,
foreign personal holding company or private foundation or other tax-exempt
organization with respect to the United States or a corporation that
accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the Holder of a Debt Security
or Coupon for payment more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof was
duly provided for, whichever occurs later;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from a payment on a Debt Security or Coupon;
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(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from a payment on a Debt Security or Coupon,
if such payment can be made without such withholding by at least one other
Paying Agent;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for a failure to comply with applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the
United States of the Holder or beneficial owner of a Debt Security or
Coupon if such compliance is required by statute or regulation of the
United States as a precondition to relief or exemption from such tax,
assessment or other governmental charge (including backup withholding);
(g) any tax, assessment or other governmental charge imposed on a
Holder that actually or constructively owns 10 percent or more of the
combined voting power of all classes of stock of the Company entitled to
vote or that is a controlled foreign corporation related to the Company
through stock ownership;
(h) any tax, assessment or other governmental charge imposed with
respect to any Registered Security by reason of failure of the Holder to
fulfill the statement requirement of Section 871(h) or Section 881(c) of
the Code or regulations thereunder or any successor provision; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) or (h)
hereof;
nor shall additional amounts be paid with respect to a payment on a Debt
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision thereof)
to be included in the income for tax purposes of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial
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owner that would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of such Debt
Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on any Debt
Security or payment with respect to any Coupon of any series, such mention shall
be deemed to include mention of the payment of additional amounts provided for
in the terms of such Debt Securities and this Section to the extent that, in
such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
SECTION 1203. Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where, if applicable, the Debt
Securities may be presented for conversion and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
and State 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
Debt Securities of that series may be surrendered for exchange, where notices
and demands to or upon the Company in respect of the Debt Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the follow paragraph (and not otherwise), (B) subject
to any laws or regulations applicable thereto, in a Place of Payment for that
series
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which is located outside the United States, an office or agency where Debt
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 1202); provided, however, that if the Debt
Securities of that series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland, 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 Payment Agent for the Debt Securities of
that series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Debt 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 that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for registration of transfer, where Debt Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Debt 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 such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee (in the case of Registered Securities) and
at the principal London office of the Trustee (in the case of Bearer
Securities), and the Company hereby appoints the Trustee as its agent to receive
all presentations, surrenders, notices and demands.
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, that, if
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security
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(including any additional amounts payable on Securities of such series pursuant
to Section 1202) shall be made at the office of the Company's Paying Agent in
the Borough of Manhattan, The City and State of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 1204. Money for Debt Securities; Payments
To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each such due date of the principal of (and premium, if any) or interest
on any of the Debt Securities of such series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by or on each due date of
the principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or
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interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless any such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Debt
securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any
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Debt Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Debt Security or Coupon
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 transmitted in the manner and to the extent
provided by Section 105, notice that such money remains unclaimed and that after
a date specified therein, which shall not be less than 30 days from the date of
such notification any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1205. Corporate Existence.
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such existence, right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
SECTION 1206. Purchase of Debt Securities by
Company.
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
SECTION 1207. Intentionally Deleted.
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SECTION 1208. Intentionally Deleted.
SECTION 1209. Intentionally Deleted.
SECTION 1210. Officers' Certificate as to Default;
Notice of Default.
(a) The Company will deliver to the Trustee, on or before a date not
more than four months after the end of each fiscal year of the Company (which on
the date hereof is the calendar year) ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observation of any of the
terms, provisions and conditions of this Indenture, and, if the Company shall be
in default, specifying all such defaults and the nature thereof of which they
may have knowledge.
(b) The Company shall file with the Trustee written notice of the
occurrence of any default (as defined in Section 602) or Event of Default within
ten Business Days of the Company becoming aware of any such default or Event of
Default.
SECTION 1211. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with the
covenants set forth in Section 1210, or, if so specified pursuant to Section
301, any other covenant specified pursuant to Section 301 with respect to the
Debt Securities of any series if, before the time for such compliance, the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant,
but no such waiver shall extend to or affect such covenant except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant shall remain in full force and effect.
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ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
SECTION 1301. Applicability of Article.
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 301 for Debt Securities of any series)
in accordance with this Article.
SECTION 1302. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301, Debt
Securities of any series may be redeemed at the option of the Company in whole,
but not in part, on not more than 60 days' and not less than 30 days' notice, on
any Redemption Date at the Redemption Price specified pursuant to Section 301
(or at par if none specified), if the Company determines that (1) it has or will
become obligated to pay additional amounts on such Debt Securities pursuant to
Section 1202 as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or any change in
official position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or after
the date on which any Person (including any Person acting as underwriter, broker
or dealer) agrees to purchase any of such Debt Securities pursuant to their
original issuance or (2) on or after such date, any action has been taken by any
taxing authority of, or any decision has been rendered in a court of competent
jurisdiction in, the United States or any political subdivision or taxing
authority thereof or therein, including any of those actions specified in (1)
above, whether or not such action was taken or decision was rendered with
respect to the Company, or any change, amendment, application or interpretation
shall be officially proposed which in any such case, in the written opinion to
the Company or independent legal counsel of recognized standing, will result in
a material probability that the Company will become obligated
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to pay additional amounts with respect to Debt Securities pursuant to Section
1202. Prior to the publication of any notice of redemption pursuant to this
Section 1302(a), the Company shall deliver to the Trustee (i) an Officers'
Certificate stating that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to the
right of the Company so to redeem have occurred, and (ii) an Opinion of Counsel
to such effect based on such statement of facts.
(b) Unless otherwise specified pursuant to Section 301, if the
Company shall determine that any payment made outside the United States by the
Company or any of its Paying Agents in respect of any Bearer Security which is
not a Floating Rate Security (an "Affected Security") would, under any present
or future laws or regulations of the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than such a requirement (i) that would not be applicable to a
payment made by the Company or any one of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of the beneficial
owner, or (ii) that can be satisfied by such custodian, nominee or other agent
certifying to the effect that the beneficial owner is a United States Alien;
provided that, in any case referred to in clause (i)(B) or (ii), payment by the
custodian, nominee or agent to the beneficial owner is not otherwise subject to
any such requirement), the Company shall elect either (x) (1) in the case of
Affected Securities that are Discount Securities, to permit the Holders of such
Affected Securities to elect, but only if done within 90 days after publication
of the Determination Notice as hereunder provided, to surrender the same for
redemption in whole but not in part at the Redemption Price, and (2) in the case
of any other Affected Securities, to redeem such Affected Securities, at the
Redemption Price, or (y) if the conditions of the next succeeding paragraph are
satisfied, to pay the additional amounts specified in such paragraph. The
Company shall make such determination as soon as practicable and publish prompt
notice thereof (the "Determination Notice"), stating the
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effective date of such certification, documentation, information or reporting
requirement, whether the Company elects to redeem (or, in the case of Discount
Securities, permit the Holders to elect to surrender for redemption) the
Affected Securities or to pay the additional amounts specified in the next
succeeding paragraph, and (if applicable) the last date by which the redemption
of the Affected Securities must take place, as provided in the next succeeding
sentence. If any Affected Securities are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one year
after the publication of the Determination Notice, as the Company shall specify
by notice to the Trustee at least 60 days before the Redemption Date. Notice of
such redemption of the Affected Securities shall be given to the Holders of
Affected Securities not more than 60 days nor less than 30 days prior to the
Redemption Date. Notwithstanding the foregoing, the Company shall not so redeem
(or, in the case of Discount Securities, permit the Holders to elect to
surrender for redemption) the Affected Securities if the Company shall
subsequently determine, not less than 30 days prior to the Redemption Date, that
subsequent payments on the Affected Securities would not be subject to any such
certification, documentation, information or other reporting requirement, in
which case the Company shall publish prompt notice of such subsequent
determination and any earlier redemption notice shall be revoked and of no
further effect.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay such additional amounts as may be necessary so that
every net payment made outside the United States following the effective date of
such requirement by the Company or any of its Paying Agents in respect of any
Affected Security of which the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge which (i) would not be applicable in the circumstances
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116
referred to in the parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of any such Affected
Security for payment more than 15 days after the date on which such payment
became due and payable or on which payment thereof was duly provided for,
whichever occurs later), will not be less than the amount provided in any such
Affected Security to be then due and payable. If the Company elects to pay
additional amounts pursuant to this paragraph, the Company shall have the right
to redeem (or, in the case of Discount Securities, permit the Holders to elect,
but only for the period of 30 days after the publication of notice of the
redemption as hereinafter provided, to surrender for redemption) the Affected
Securities as a whole, but not in part, at any time at the Redemption Price,
subject to the provisions of the last two sentences of the immediately preceding
paragraph. If the Company has made the determination described in the preceding
paragraph with respect to certification, documentation, information or other
reporting requirements applicable only to interest and subsequently makes a
determination in the manner and of the nature referred to in such preceding
paragraph with respect to such requirements applicable to principal, the Company
will redeem the Affected Securities in the manner and on the terms described in
the preceding paragraph unless the Company elects to have the provisions of this
paragraph apply rather than the provisions of the immediately preceding
paragraph. If in such circumstances the Affected Securities are to be redeemed,
the Company shall have no obligation to pay additional amounts pursuant to this
paragraph with respect to principal, but will be obligated to pay such
additional amounts with respect to interest accrued and unpaid to the date of
such redemption. If the Company elects to pay additional amounts pursuant to
this paragraph and the condition specified in the first sentence of this
paragraph should no longer be satisfied, then the Company shall redeem (or, in
the case of Discount Securities, permit the Holders to elect, but only for the
period of 30 days after publication of the notice of redemption as hereinafter
provided, to surrender for redemption) the Affected Securities in whole, but not
in part, at the Redemption Price subject to the provisions of the last two
sentences of the immediately preceding paragraph. If the Company elects to, or
is required to, redeem (or, in the case of Discount Securities, required to
permit Holders to elect to surrender
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for redemption) the Affected Securities pursuant to the two immediately
preceding sentences, it shall publish prompt notice thereof. If the Affected
Securities are to be redeemed pursuant to this paragraph, the redemption shall
take place on such date, not later than one year after publication of the notice
of redemption, as the Company shall specify by notice to the Trustee at least 60
days prior to the Redemption Date. Any redemption payments made by the Company
pursuant to this paragraph shall be subject to the continuing obligation of the
Company to pay additional amounts pursuant to this paragraph.
SECTION 1303. Election to Redeem; Notice to
Trustee.
The election of the Company to redeem (or in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 1304, 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 in its sole discretion), notify the Trustee of such
Redemption Date and of the principal amount of Debt Securities of such series to
be redeemed. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restrictions.
SECTION 1304. Selection by Trustee of Debt
Securities to Be Redeemed.
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company
(other than as provided in Section 1302), the particular Debt Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Debt Securities of such series not previously
called for
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redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Debt Securities of such series or any
integral multiple thereof) of the principal amount of Debt Securities of such
series in a denomination larger than the minimum authorized denomination for
Debt Securities of such series pursuant to Section 302 in the Currency in which
the Debt Securities of such series are denominated. The portions of the
principal amount of Debt Securities so selected for partial redemption shall be
equal to the minimum authorized denominations for Debt Securities of such series
pursuant to Section 302 in the Currency in which the Debt Securities of such
series are denominated or any integral multiple thereof, except as otherwise set
forth in the applicable form of Debt Securities. In any case where more than
one Registered Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so registered
as if it were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
If any Debt Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Debt Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Upon any redemption of less than all the Debt Securities of a series, for
purposes of selection for redemption, the Company and the Trustee may treat as
Outstanding Debt Securities surrendered for conversion during the period of 15
days next preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Debt Security authenticated and delivered during such period in
exchange for the unconverted portion of any Debt Security converted in part
during such period.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to
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the portion of the principal amount of such Debt Security which has been or is
to be redeemed.
SECTION 1305. Notice of Redemption.
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 105. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture establishing
such series, if such be the case, together with a brief statement of the
facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
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(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305(b) or otherwise,
the last date on which such exchanges may be made,
(9) that the redemption is for a sinking fund, if such is the case,
(10) the Conversion Price then in effect and the date on which the
right to convert such Debt Security to be redeemed will expire, and
(11) the CUSIP number or numbers of the Debt Security to be redeemed.
SECTION 1306. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date for any
Debt Securities, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1204) an amount of money in the Currency or
Currencies in which such Debt Securities are denominated (except as provided
pursuant to Section 301) sufficient to pay the Redemption Price of such Debt
Securities or portions thereof which are to be redeemed on that date (other than
those theretofore surrendered for conversion into Common Stock). If any Debt
Security called for redemption is converted pursuant hereto, any money
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deposited with the Trustee or any Paying Agent or so held in trust shall be paid
to the Company on the Company's request, or, if then held by the Company, shall
be discharged from such trust.
SECTION 1307. Debt Securities Payable on
Redemption Date.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 301
or 310), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. In addition, such Debt Securities shall, if convertible by their
terms into Common Stock, cease from and after the date fixed for redemption
(unless an earlier date shall be specified in a Board Resolution, Officer's
Certificate or executed supplemental indenture referred to in Sections 201 and
301 by or pursuant to which the terms of the Debt Securities of such series were
established) to be convertible into Common Stock (unless the Company shall
default in the payment of the Redemption Price). Upon surrender of any such
Debt Security for redemption in accordance with said notice, such Debt Security
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 (except as otherwise provided in Section 1203)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of Coupons for such interest, and provided, further,
that, unless otherwise specified as contemplated by Section 301, installments of
interest on Registered Securities which have a Stated Maturity on or prior to
the Redemption date for such Debt Securities shall be payable according to the
terms of such Debt Securities and the provisions of Section 307.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear
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interest from the Redemption Date at the rate prescribed therefor in the Debt
Security. In addition, such Debt Security shall, if convertible by its terms
into Common Stock, remain convertible into Common Stock until the principal (and
premium, if any) of such Security shall have been paid or duly provided for.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States 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. 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.
SECTION 1308. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 301 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 301
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered, and, in the case of a
Coupon
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Security, with appropriate Coupons attached. In the case of a Debt Security
providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
SECTION 1401. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt
Securities of any series, the amount of any cash sinking fund payment may be
subject to reduction as provided in Section 1402. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
SECTION 1402. Satisfaction of Mandatory Sinking
Fund Payments with Debt Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund
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payments pursuant to the terms of the Debt Securities of such series,
accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Debt Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
PROVIDED that such Debt Securities shall not have been previously so credited.
Such Debt Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Debt Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 1403. Redemption of Debt Securities for
Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 301) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section 1402
and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 1402 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
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Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent segregated and held in trust as provided in
Section 1204) for such series and, together with such payment (or such amount so
segregated) shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 1204) on the
last sinking fund payment date with respect to Debt Securities of such series
and not held for the payment or redemption of particular Debt Securities of such
series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys if necessary, to be
deposited (or segregated) sufficient for the purpose to the payment of the
principal of the Debt Securities of such series at Maturity. The Company's
obligation to make a mandatory or optional sinking fund payment shall
automatically be reduced by an amount equal to the sinking fund redemption price
allocable to any Debt Securities or portions thereof called for redemption
pursuant to the preceding paragraph on any sinking fund payment date and
converted into Common Stock; PROVIDED that, if the Trustee is not the Conversion
Agent for the Debt Securities, the Company or such Conversion Agent shall give
the Trustee written notice prior to the date fixed for redemption of the
principal amount of Securities or portions thereof so converted.
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The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 1304 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 1305. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 1307.
On or before each sinking fund payment date, the Company shall pay to
the Trustee (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 1204) in cash a sum, in
the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 301 or 310), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived as provided herein such moneys shall thereafter be applied on the next
sinking
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fund payment date for the Debt Securities of such series on which such moneys
may be applied pursuant to the provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Applicability of Article.
If, pursuant to Section 301, provision is made for the defeasance of
Debt Securities of a series (other than Debt Securities that are convertible
into Common Stock) pursuant to this Article 15, and if the Debt Securities of
such series are Registered Securities and denominated and payable only in
Dollars (except as provided pursuant to Section 301) then the provisions of this
Article shall be applicable except as otherwise specified pursuant to Section
301 for Debt Securities of such series. Defeasance provisions, if any, for Debt
Securities denominated in a Foreign Currency or Currencies or for Bearer
Securities may be specified pursuant to Section 301.
SECTION 1502. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Debt Securities of any series on the 91st day after the applicable conditions
set forth below have been satisfied or (b) the Company shall cease to be under
any obligation to comply with any term, provision or condition set forth in
Section 1001 with respect to Debt Securities of any series (and if so specified
pursuant to Section 301, any other restrictive covenant added for the benefit of
such series pursuant to Section 301) at any time after the applicable conditions
set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
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Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (i) and (ii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee (upon which the Trustee may conclusively
rely), to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest on,
the Outstanding Debt Securities of such series on the dates such
installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the Debt
Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Debt Securities of any series;
(3) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise of
its option under this Section would not cause such Debt Securities to be
delisted;
(5) the Company shall have delivered to the Trustee an Officer's
Certificate to the effect that no Event of Default or event (including such
deposit) which, with notice or lapse of time or both, would become an Event
of Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and no Event of
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Default under Section 501(1) or (2) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default under
Section 501(1) or (2) shall have occurred and be continuing on the 91st day
after such date; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that the
Holders of the Debt Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance or Discharge.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 304, 305, 306, 1203 and 1503 and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government obligation held by such custodian
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for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
SECTION 1503. Deposited Moneys and U.S Government
Obligations to Be Held in Trust.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 1502 in respect of Debt Securities of a series shall be held
in trust and applied by it, in accordance with the provisions of such Debt
Securities 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 Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 1504. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
1502.
The provisions of the last paragraph of Section 1204 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 1502.
ARTICLE SIXTEEN
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SUBORDINATION OF DEBT SECURITIES
SECTION 1601. Debt Securities Subordinate to
Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture or
the Debt Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Debt Securities of each series is subordinate and
junior in right of payment to all Senior Indebtedness to the extent provided
herein, and each Holder of Debt Securities of each series, by his acceptance
thereof, likewise covenants and agrees to the subordination herein provided and
shall be bound by the provisions hereof. Senior Indebtedness shall continue to
be Senior Indebtedness and entitled to the benefits of these subordination
provisions irrespective of any amendment, modification or waiver of any term of
the Senior Indebtedness or extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Indebtedness when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the holders of Senior Indebtedness or
any trustee therefor, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of (or premium, if any) or interest on any of
the Debt Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Debt Securities other than those made in capital
stock (or cash in lieu of fractional shares thereof) pursuant to Article
Seventeen.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
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(b) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Debt Securities on account thereof. Any
payment or distribution, whether in cash, securities or other property (other
than securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Debt Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Debt Securities of any series shall be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the Holders of the
Debt Securities, together with the holders of any obligations of the Company
ranking on a parity with the Debt Securities, shall be entitled to be paid from
the remaining assets of the Company the amounts at the time due and owing on
account of unpaid principal of (and premium, if any) and interest on the Debt
Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any capital
stock or
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any obligations of the Company ranking junior to the Debt Securities and such
other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
are subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Debt Securities, to
the payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by the Trustee or any Holder in contravention
of any of the terms hereof, such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full. In the event of
the failure of the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Debt Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the Holders of
Debt Securities of each series, the obligation of the Company to pay to such
Holders the principal of (and premium, if any) and interest on such Debt
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to receive cash, securities or other property
otherwise payable or deliverable to the Holders.
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Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Debt Securities
of each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Debt Securities of
such series shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to the holders of
Senior Indebtedness, shall, as between the Company and its creditors other than
the holders of Senior Indebtedness, on the one hand, and such Holders, on the
other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Debt Securities of such series.
The provisions of this Section 1601 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Debt Securities or ranking junior to the Debt Securities, shall
not be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Debt Securities or ranking junior to
the Debt Securities.
SECTION 1602. Reliance on Certificate of Liqui-
dating Agent; Further Evidence as to
Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Company, the Trustee
and the Holders shall be entitled to rely upon an order or decree made by any
court of competent jurisdiction in which such dissolution or winding up or
liquidation or reorganization or arrangement proceedings are pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other
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Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Sixteen. In the absence of any such bankruptcy trustee, receiver,
assignee or other Person, the Trustee shall be entitled to rely upon a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) as evidence that such
Person is holder of such Senior Indebtedness (or is such a trustee or
representative). In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distributions pursuant
to this Article Sixteen, the Trustee may request such person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Article Sixteen, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness.
SECTION 1603. Payment Permitted If No Default.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture, or in any of the Debt Securities, shall prevent (a) the Company at
any time, except during the pendency of any dissolution, winding up, liquidation
or reorganization proceedings referred to in, or under the conditions described
in, Section 1601, from making payments of the principal of (or premium, if any)
or interest on the Debt Securities, or (b) the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to payments of the
principal of (or premium, if any) or interest on the Debt Securities, if, at the
time of such deposit, the Trustee or such Paying Agent, as the case may be, did
not have the written notice provided for in Section
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1604 of any event prohibiting the making of such deposit, or if, at the time of
such deposit (whether or not in trust) by the Company with the Trustee or Paying
Agent (other than the Company) such payment would not have been prohibited by
the provisions of this Article, and the Trustee or any Paying Agent shall not be
affected by any notice to the contrary received by it on or after such date.
SECTION 1604. Trustee Not Charged with Knowledge
of Prohibition.
Anything in this Article Sixteen or elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1601 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; PROVIDED, HOWEVER, that, if
prior to the third Business Day preceding the date upon which by the terms
hereof any money becomes payable (including, without limitation, the payment of
either the principal of or interest on any Debt Security), or in the event of
the execution of an instrument pursuant to Section 401 acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee or any Paying
Agent shall not have received with respect to such money the Officers'
Certificate or notice provided for in this Section 1604, then, anything herein
contained to the contrary notwithstanding, the Trustee or such Paying Agent
shall have full power and authority to receive such money and apply the same to
the purpose for which it was received and shall not be affected by any notice to
the contrary which may be received by it on or after such date. The Company
shall give prompt written notice to the Trustee and to the Paying Agent
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of any facts which would prohibit the payment of money to or by the Trustee or
any Paying Agent.
SECTION 1605. Trustee to Effectuate Subordination.
Each Holder of Debt Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such Holder and holders
of Senior Indebtedness as provided in this Article Sixteen and appoints the
Trustee its attorney-in-fact for any and all such purposes.
SECTION 1606. Rights of Trustee as Holder of
Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article Sixteen with respect to any Senior Indebtedness which may at the time be
held by it, to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article Sixteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1607. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Sixteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article Sixteen in addition to or in place of the Trustee;
PROVIDED, HOWEVER, that Sections 1604 and 1606 shall not apply to the Company or
any Affiliate of the Company if the Company or such Affiliate acts as Paying
Agent.
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SECTION 1608. Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may, at any time
or from time to time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or renew or alter,
any such Senior Indebtedness, or amend or supplement any instrument pursuant to
which any such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any other
of their rights under the Senior Indebtedness, including, without limitation,
the waiver of default thereunder, all without notice to or assent from the
Holders of the Debt Securities or the Trustee and without affecting the
obligations of the Company, the Trustee or the Holders of the Debt Securities
under this Article Sixteen.
ARTICLE SEVENTEEN
CONVERSION OF DEBT SECURITIES
SECTION 1701. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are convertible into Common Stock as provided by
the terms of the Debt Securities of such series.
SECTION 1702. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Debt
Security to be converted shall surrender such Debt Security to the Conversion
Agent at any time during
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usual business hours at its office or agency maintained for the purpose as
provided in this Indenture, accompanied by a fully executed written notice, in
substantially the form set forth on the reverse of the Debt Security, that the
Holder elects to convert such Debt Security or a stated portion thereof
constituting a multiple of $1,000 in principal amount, and, if such Debt
Security is surrendered for conversion during the period between the close of
business on any record date for such Debt Security and the opening of business
on the related interest payment date and has not been called for redemption on a
redemption date within such period, accompanied also by payment of an amount
equal to the interest payable on such interest payment date on the portion of
the principal amount of the Debt Security being surrendered for conversion.
Such notice shall also state the name or names (and address) in which the
certificate or certificates for shares of Common Stock shall be issued (or to
whom payment in cash in lieu of fractional shares of Common Stock shall be
made). Debt Securities surrendered for conversion shall (if so required by the
Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Conversion Agent duly executed by, the Holder or his attorney
duly authorized in writing. As promptly as practicable after the receipt of
such notice and the surrender of such Debt Security as aforesaid, the Company
shall, subject to the provisions of Section 1707, issue and deliver at such
office or agency to such Holder, or on his written order, a certificate or
certificates for the number of full shares of Common Stock issuable on
conversion of such Debt Security in accordance with the provisions of such Debt
Security and cash, as provided in Section 1703, in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion. Such conversion
shall be at the Conversion Price in effect, and shall be deemed to have been
effected, immediately prior to the close of business on the date (herein called
the "Date of Conversion") on which such notice in proper form shall have been
received by the Conversion Agent and such Debt Security shall have been
surrendered as aforesaid, and the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable, if
any, upon such conversion shall be deemed to have become on the Date of
Conversion the holder or
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holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the Person or Persons in whose name or names the
certificate or certificates for such shares are to be issued, if any, as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the Conversion Price in effect at the close
of business on the date when such Debt Security shall have been so surrendered
with the conversion notice in proper form. In the case of conversion of a
portion, but less than all, of a Debt Security, the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder thereof, at the expense
of the Company, a Debt Security or Debt Securities in the aggregate principal
amount of the unconverted portion of the Debt Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Debt Security (or portion thereof) converted
or for dividends or distributions on any Common Stock issued upon conversion of
any Debt Security. The right, if any, of a Holder of any Debt Security to cause
the Company to redeem, purchase or repay such Debt Security shall terminate upon
receipt by the Company of any notice of conversion of such Debt Security.
SECTION 1703. Fractional Interests.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Debt Securities. If more than one Debt Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon Conversion thereof shall be computed
on the basis of the aggregate principal amount of the Debt Securities so
surrendered. If any fraction of a share of Common Stock would, except for the
provisions of this Section 1703, be issuable on the conversion of any Debt
Security or Debt Securities, the Company shall make payment in lieu thereof in
cash equal to the value of such fraction computed on the basis of the Last Sale
Price of one share of Common Stock on the most recent Trading Day prior to the
Date of Conversion. "Last Sale Price" on any Trading Day shall mean (i) the
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closing price regular way (or, if no closing price is reported, the average of
the bid and asked prices) as reported in the listing of New York Stock Exchange
Composite Transactions published in the Wall Street Journal, or (ii) if on such
Trading Day the Common Stock is not listed or admitted to trading on such
exchange, the closing price regular way (or, if no closing price is reported the
average of the bid and asked prices) on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, or (iii) if
not listed or admitted to trading on any national securities exchange on such
Trading Day, then the average of the closing bid and asked prices as reported
through the National Association of Securities Dealers, Inc. on its NASDAQ
National Market System or NASDAQ System or a similar organization if NASDAQ is
no longer reporting such information, or (iv) if the Common stock is not listed
or admitted to trading on any national securities exchange or quoted on such
National Market System or NASDAQ System on such Trading Day, then the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose or (v) if not quoted by any such organization on such
Trading Day, the fair value of such Common Stock on such Trading Day, as
determined by the Board of Directors. The term "Trading Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on any of the above mentioned exchanges or in such
markets.
SECTION 1704. Adjustment of Conversion Price.
The conversion price (herein called the "Conversion Price") for a
series of Debt Securities shall be as set forth in a Board Resolution, Officer's
Certificate or executed supplemental indenture referred to in Sections 201 and
301 by or pursuant to which the form and terms of the Debt Securities of such
series were established, and shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2)
subdivide its outstanding shares of Common Stock into a greater number
of shares, (3) combine its outstanding
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shares of Common Stock into a smaller number of shares or (4) issue by
reclassification of its Common Stock any shares of capital stock of
the Company, the Conversion Price in effect immediately prior to such
action shall be adjusted so that the Holder of any Debt Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other capital stock of the Company
which he would have owned immediately following such action had such
Debt Security been converted immediately prior thereto. An adjustment
made pursuant to this subsection (a) shall become effective
immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If as a result of an
adjustment made pursuant to this subsection (a), the Holder of any
Debt Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes of capital stock
(including shares of Common Stock and other capital stock) of the
Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed with the
Trustee) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital stock or
shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all
holders of Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (as determined pursuant to subsection (d)
below) of the Common Stock on the record date mentioned below, the
Conversion Price shall be adjusted to a price, computed to the nearest
cent, so that the same shall equal the price determined by
multiplying:
(1) the Conversion Price in effect immediately prior to the
date of issuance of
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such rights or warrants by a fraction, of which
(2) the numerator shall be (a) the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (b) the
number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase would
purchase at such current market price (determined by multiplying
such total number of shares by the exercise price of such rights
or warrants and dividing the product so obtained by such current
market price), and of which
(3) the denominator shall be (a) the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (b) the
number of additional shares of Common Stock which are so offered
for subscription or purchase.
Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all
holders of Common Stock, evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than
Common Stock, or other assets (other than cash dividends paid out of
retained earnings of the Company), or shall distribute to
substantially all holders of Common Stock rights or warrants to
subscribe for securities (other than those referred to in subsection
(b) above) then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
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date of such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in
subsection (d) below) of the Common Stock on the record date mentioned
below less the then fair market value (as determined by the Board of
Directors, whose determination shall, if made in good faith, be
conclusive evidence of such fair market value) of the portion of the
assets so distributed or of such subscription rights or warrants
applicable to one share of Common Stock, and of which the denominator
shall be such current market price per share of the Common Stock.
Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination
of stockholders entitled to receive such distribution. If after the
Distribution Date (the "Distribution Date"), as defined in the Rights
Agreement, dated as of February 21, 1990, between the Company and
Barnett Banks Trust Company, N.A., as in effect on the date hereof
(the "Rights Agreement"), converting Holders of Debt Securities are
not entitled to receive the Rights, as defined in the Rights
Agreement, which would otherwise be attributable to the shares of
Common Stock received upon such conversion, then adjustment of the
Conversion Price shall be made under the preceding sentence as if the
Rights were then being distributed to the Holders of the Common Stock.
If such an adjustment is made and the Rights are later redeemed,
invalidated or terminated, then a corresponding adjustment shall be
made to the Conversion Price, on an equitable basis, to take account
of such event. However, the Company may elect to amend the provisions
presently applicable to the Rights so that each share of Common Stock
issuable on conversion of the Debt Securities, whether or not issued
after the Distribution Date for such Rights, will be accompanied by
the Rights which would otherwise be attributable (but for the date of
conversion) to such share of Common Stock, in which event the
preceding two sentences will not apply.
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(d) For the purpose of any computation under subsections (b) and
(c) above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the Last Sale Prices for the
30 consecutive Trading Days commencing 45 Trading Days before the date
in question.
(e) In any case in which this Section 1704 shall require that an
adjustment be made immediately following a record date, the Company
may elect to defer the effectiveness of such adjustment (but in no
event until a date later than the effective time of the event giving
rise to such adjustment), in which case the Company shall, with
respect to any Debt Security converted after such record date and
before such adjustment shall have become effective, (i) defer paying
any cash payment pursuant to Section 1703 or issuing to the Holder of
such Debt Security the number of shares of Common Stock and other
capital stock of the Company issuable upon such conversion in excess
of the number of shares of Common Stock and other capital stock of the
Company issuable thereupon only on the basis of the Conversion Price
prior to adjustment and (ii), not later than five Business Days after
such adjustment shall have become effective, pay to such Holder the
appropriate cash payment pursuant to Section 1703 and issue to such
Holder the additional shares of Common Stock and other capital stock
of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% of the Conversion Price; PROVIDED, that any adjustments which
by reason of this subsection (f) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment
and, provided, further, that adjustment shall be required and made in
accordance with the provisions of this Article Seventeen (other than
this subsection (f)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution to the holders
of Debt
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Securities or Common Stock. All calculations under this Article
Seventeen shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and
each Conversion Agent an Officer's Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Debt Securities at his address as the same appears on
either the registry books of the Company or in the filings described
in Section 701.
Anything in this Section 1704 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 1704, as it in its discretion
shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock
or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 1705. Continuation of Conversion Privilege
in Case of Merger, Consolidation or
Sale of Assets.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock; or (b) any sale or conveyance
of all or substantially all of the property or business of the Company as an
entirety, then the Company, or such successor or purchasing corporation, as the
case may be, shall, as a condition precedent to such consolidation, merger, sale
or conveyance, execute and
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deliver to the Trustee a supplemental indenture (which shall conform to the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
providing that the Holder of each convertible Debt Security then outstanding
shall have the right to convert such Debt Security into the kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock issuable upon conversion of such Debt Security
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Seventeen. If, in the case of any such consolidation,
merger, sale or conveyance, the stock or other securities and property
(including cash) receivable thereupon by a holder of shares of Common Stock
includes shares of stock or other securities and property (including cash) of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the Debt
Securities as the Board of Directors shall reasonably consider necessary by
reason of the foregoing. The provisions of this Section 1705 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Debt Securities at his address as the same appears on
the registry books of the Company.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of Debt
Securities upon the conversion of their Debt Securities after any such
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 601 and 603, may
accept as conclusive evidence of the correctness of
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any such provisions, and shall be protected in relying upon, the Officer's
Certificate (which the Company shall be obligated to file with the Trustee prior
to the execution of any such supplemental indenture) with respect thereto.
SECTION 1706. Notice of Certain Events.
If:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than in
cash paid out of retained earnings of the Company; or
(b) the Company shall authorize the granting to the holders of
Common Stock of rights to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(c) the Company shall authorize any reclassification or change
of the Common Stock (other than a subdivision or combination of its
outstanding shares of Common Stock), or any consolidation or merger to
which the Company is a party and for which approval of any
stockholders of the Company is required, or the sale or conveyance of
all or substantially all the property or business of the Company; or
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
When, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Debt Securities as provided in
Section 1203, and shall cause to be mailed to each Holder of Debt Securities, at
his address as it shall appear on the registry books of the Company, at least 20
days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution or granting of rights, or if a record is
not to be taken, the
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date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up is expected to become effective and the date, if any
is to be fixed, as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up.
SECTION 1707. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Debt Securities pursuant thereto; PROVIDED,
HOWEVER, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the Holder of the Debt Securities
to be converted (or payment of cash in lieu of fractional shares thereof to a
Person other than such Holder) and no such issue or delivery (or payment) shall
be made unless and until the Person requesting such issue or delivery (or
payment) has paid to the Company the amount of any such tax or has established,
to the satisfaction of the Company, that such tax has been paid. The Company
extends no protection with respect to any other taxes imposed in connection with
conversion of Debt Securities.
SECTION 1708. Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Debt Securities from time to time as such Debt Securities are
presented for conversion, PROVIDED, HOWEVER, that nothing contained herein shall
be construed to preclude the Company from satisfying its obligations in respect
of the conversion of Debt Securities by delivery of repurchased shares of Common
Stock which are held in the treasury of the Company.
<PAGE>
150
If any shares of Common Stock to be reserved for the purpose of
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law before such shares may
be validly issued or delivered upon conversion, then the Company covenants that
it will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; PROVIDED, HOWEVER, that nothing in
this Section 1708 shall be deemed to affect in any way the obligations of the
Company to convert Debt Securities into Common Stock as provided in this Article
Seventeen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Debt Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 1709. Disclaimer of Responsibility for
Certain Matters.
Neither the Trustee, the Conversion Agent nor any agent of either
shall at any time be under any duty or responsibility to any Holder of Debt
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Price, or with respect to the Officer's Certificate referred
to in Section 1704(g), or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee, the Conversion Agent nor any agent of either shall be accountable
with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property (including cash), which may at
any time be issued or delivered upon the conversion of any Debt Security; and
neither the Trustee, the Conversion Agent nor any agent of either makes any
representation with respect thereto. Neither the Trustee, the
<PAGE>
151
Conversion Agent nor any agent of either shall be responsible for any failure of
the Company to issue, register the transfer of or deliver any shares of Common
Stock or stock certificates or other securities or property (including cash)
upon the surrender of any Debt Security for the purpose of conversion or,
subject to the Sections 601 and 603, to comply with any of the covenants of the
Company contained in this Article Seventeen.
SECTION 1710. Return of Funds Deposited for
Redemption of Converted Debt
Securities.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any Paying Agent for the purpose of paying
the principal of and interest and premium, if any, on any of the Debt Securities
and which shall not be required for such purposes because of the conversion of
such Debt Securities, as provided in this Article Seventeen, shall after such
conversion be repaid to the Company by the Trustee or such Paying Agent.
<PAGE>
152
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.
BARNETT BANKS, INC.
By:_______________________________
Title:
Attest:
_____________________
Seal
CHEMICAL BANK
__________________________________
as Trustee
By:______________________________
Title:
Attest:
_____________________
Seal
<PAGE>
153
STATE OF _________ )
) ss:
COUNTY OF ________ )
On the ______ day of February, 1995, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is _________ of Barnett Banks, Inc. one of the corporations described in
and which executed the foregoing instrument; that he knows the 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
SEAL
STATE OF ________ )
) ss:
COUNTY OF _______ )
On the ____ day of February, 1995, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is a ____________________ of Chemical Bank, one of the corporations
described in and which executed the foregoing instrument; that he knows the 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
SEAL
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR
OR CEDEL, S.A. BY OR ON BEHALF OF A PERSON ENTITLED
TO RECEIVE A DEFINITIVE BEARER SECURITY, TO EXCHANGE AN
INTEREST IN A TEMPORARY GLOBAL NOTE FOR AN INTEREST IN A
PERMANENT GLOBAL NOTE OR TO OBTAIN A PAYMENT OF INTEREST
PRIOR TO THE RECEIPT OF A DEFINITIVE BEARER SECURITY
OR AN INTEREST IN A PERMANENT GLOBAL NOTE]
CERTIFICATE
---------------------------
Barnett Banks, Inc.
[Insert title of sufficient description
of Debt Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below, the above-captioned Debt Securities held by you for our account (i) are
owned by persons that are not United States persons, (as defined below) (ii) are
owned by United States persons that (A) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) ("financial institutions") purchasing for their own account or for
resale, or (B) acquired the Debt Securities through foreign branches of United
States financial institutions and who hold the Debt Securities through such
financial institutions on the date hereof (and in either case (A) or (B), each
such financial institution has agreed, on its own behalf or through its agent,
that we may advise the issuer or the issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by a
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)). In addition, United States or foreign financial institutions
described in
<PAGE>
2
clause (iii) of the preceding sentence (whether or not also described in clause
(i) or (ii)) certify that they have not acquired the Debt Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States Person" means any citizen or resident
of the United States, any corporation or partnership 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), and its possessions include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Debt
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification, you may assume that this certification
applies as of such date.
This certification excepts and does not relate to $______ principal
amount of such interest in the above Debt Securities in respect of which we are
not able to certify and as to which we understand exchange and delivery of
definitive Debt Securities cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification or a copy thereof to any interested party in
such proceedings.
Dated: ________________________, 19___
<PAGE>
3
[To be dated no earlier than the
15th day before (i) the Exchange
Date or (ii) the first Interest
Payment Date, if prior to the
Exchange Date].
By:_________________________________
As, or as agent for, the
beneficial owner(s) of the
Debt Securities to which this
certificate relates
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
OR CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF A
TEMPORARY GLOBAL NOTE FOR DEFINITIVE BEARER SECURITIES OR
FOR AN INTEREST IN A PERMANENT GLOBAL NOTE OR TO OBTAIN A
PAYMENT OF INTEREST PRIOR TO THE RECEIPT OF DEFINITIVE
BEARER SECURITIES OR AN INTEREST IN A PERMANENT GLOBAL NOTE]
CERTIFICATE
---------------------------
Barnett Banks, Inc.
[Insert title or sufficient description
of Debt Securities to be delivered]
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, as of the date hereof, $
principal amount of the above-captioned Debt Securities (i) is owned by persons
that are not United States persons (as defined below), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 165-12(c)(1)(v))
("financial institutions") purchasing for their own account or for resale, or
(b) acquired the Debt Securities through foreign branches of United States
financial institutions and who hold the Debt Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby 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), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)). In
<PAGE>
2
addition, United States or foreign financial institutions described in clause
(iii) of the preceding sentence (whether or not also described in clause (i) or
(ii) have certified that they have not acquired the Debt Securities for purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possession.
As used herein, United States Person" means any citizen or resident of
the United States, any corporation or partnership 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), and its possessions include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify (i) we are not making available for exchange or
collection of any interest any portion of the Temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: ___________________, 19__
[To be dated no earlier than
(i) the Exchange Date or (ii)
the first Interest Payment Date,
if prior to the Exchange Date]
<PAGE>
3
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euro-clear
System] [CEDEL, S.A.]
By________________________________
<PAGE>
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF FEBRUARY __, 1995
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310 (a)(1) . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . 608
. . . . . . . . . . . . . 610
(c). . . . . . . . . . . . . Not Applicable
Section 311 (a). . . . . . . . . . . . . 613(a)
(b). . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . 703(a)(2)
. . . . . . . . . . . . . 703(b)
Section 312 (a). . . . . . . . . . . . . 701
. . . . . . . . . . . . . 702(a)
(b). . . . . . . . . . . . . 702(b)
(c). . . . . . . . . . . . . 702(c)
Section 313 (a). . . . . . . . . . . . . 703(a)
(b). . . . . . . . . . . . . 703(b)
(c). . . . . . . . . . . . . 703(a)
. . . . . . . . . . . . . 703(c)
(d). . . . . . . . . . . . . 703(d)
Section 314 . . . . . . . . . . . . . . 704
(b). . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . 102
Section 315 (a). . . . . . . . . . . . . 601(a)
. . . . . . . . . . . . . 601(c)
(b). . . . . . . . . . . . . 602
. . . . . . . . . . . . . 703(a)(6)
(c). . . . . . . . . . . . . 601(b)
(d). . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . 601(a)
(d)(2) . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . 601(c)(3)
(e). . . . . . . . . . . . . 514
Section 316 (a). . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . 502
. . . . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . 513
<PAGE>
5
(a)(2) . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . 504
(b). . . . . . . . . . . . . 1204
Section 318 (a). . . . . . . . . . . . . 106
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
EXHIBIT (4)(f)
Form of Indenture relating to the Senior Securities
<PAGE>
SENIOR INDENTURE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BARNETT BANKS, INC.
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
____________________
INDENTURE
Dated as of February __, 1995
____________________
<PAGE>
2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PAGE
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificates and Opinions. . . . . . . . . . . . . 12
SECTION 1.3 Form of Documents Delivered to Trustee. . . . . . . . . . . . 13
SECTION 1.4 Notices, etc., to Trustee and Company . . . . . . . . . . . . 14
SECTION 1.5 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 14
SECTION 1.6 Conflict with Trust Indenture Act . . . . . . . . . . . . . . 15
SECTION 1.7 Effect of Headings and Table of Contents. . . . . . . . . . . 16
SECTION 1.8 Successors and Assigns. . . . . . . . . . . . . . . . . . . . 16
SECTION 1.9 Separability Clause . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.10 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.12 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.13 No Security Interest Created. . . . . . . . . . . . . . . . . 17
SECTION 1.14 Liability Solely Corporate. . . . . . . . . . . . . . . . . . 17
ARTICLE II
DEBT SECURITY FORMS . . . . . . . . . . . . . 17
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2 Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE III
THE DEBT SECURITIES . . . . . . . . . . . . . 19
- i -
<PAGE>
PAGE
SECTION 3.1 Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 19
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.3 Execution, Authentication, Delivery and Dating. . . . . . . . 23
SECTION 3.4 Temporary Debt Securities; Exchange
of Temporary Global Notes for Definitive
Bearer Securities . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.5 Registration, Transfer and Exchange . . . . . . . . . . . . . 33
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.7 Payment of Interest; Interest Rights Preserved. . . . . . . . 37
SECTION 3.8 Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.9 Computation of Interest . . . . . . . . . . . . . . . . . . . 40
SECTION 3.10 Currency Debt Securities. . . . . . . . . . . . . . . . . . . 40
SECTION 3.11 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 3.12 Exchange Upon Default . . . . . . . . . . . . . . . . . . . . 45
ARTICLE IV
SATISFACTION AND DISCHARGE. . . . . . . . . . . . 45
SECTION 4.1 Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.2 Application of Trust Money. . . . . . . . . . . . . . . . . . 47
ARTICLE V
REMEDIES . . . . . . . . . . . . . . . . 47
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . . . . 51
SECTION 5.4 Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 52
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Debt Securities . . . . . . . . . . . . . . . 53
SECTION 5.6 Application of Money Collected. . . . . . . . . . . . . . . . 53
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 54
- ii -
<PAGE>
PAGE
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Enforce
Conversion Rights.. . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.9 Restoration of Rights and Remedies. . . . . . . . . . . . . . 55
SECTION 5.10 Rights and Remedies Cumulative. . . . . . . . . . . . . . . . 55
SECTION 5.11 Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 55
SECTION 5.12 Control by Holders. . . . . . . . . . . . . . . . . . . . . . 56
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 56
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 57
SECTION 5.15 Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . 57
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . . 57
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . . 57
SECTION 6.2 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 58
SECTION 6.4 Not Responsible for Recitals or
Issuance of Debt Securities . . . . . . . . . . . . . . . . 59
SECTION 6.5 May Hold Debt Securities. . . . . . . . . . . . . . . . . . . 60
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.7 Compensation and Reimbursement. . . . . . . . . . . . . . . . 60
SECTION 6.8 Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.9 Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.10 Resignation and Removal; Appointment of Successor . . . . . . 61
SECTION 6.11 Acceptance of Appointment by
Successor. . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.13 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . 65
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . 67
- iii -
<PAGE>
PAGE
SECTION 7.1 Company to Furnish Trustee Names
and Addresses of Holders. . . . . . . . . . . . . . . . . . 67
SECTION 7.2 Preservation of Information;
Communication to Holders. . . . . . . . . . . . . . . . . . 68
SECTION 7.3 Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.4 Reports by Company. . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE VIII
CONCERNING THE HOLDERS. . . . . . . . . . . . . 70
SECTION 8.1 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.2 Proof of Ownership; Proof of
Execution of Instruments by Holders . . . . . . . . . . . . 70
SECTION 8.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.4 Revocation of Consents; Future
Holders Bound . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE IX
HOLDERS' MEETINGS. . . . . . . . . . . . . . 72
SECTION 9.1 Purposes of Meetings. . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.2 Call of Meetings by Trustee . . . . . . . . . . . . . . . . . 73
SECTION 9.3 Call of Meetings by Company or Holders. . . . . . . . . . . . 73
SECTION 9.4 Qualifications for Voting . . . . . . . . . . . . . . . . . . 73
SECTION 9.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 9.6 Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 9.7 No Delay of Rights by Meeting . . . . . . . . . . . . . . . . 75
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . 75
SECTION 10.1 Company May Consolidate, etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . . . . 75
SECTION 10.2 Successor Corporation Substituted . . . . . . . . . . . . . . 76
ARTICLE XI
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 76
- iv -
<PAGE>
PAGE
SECTION 11.1 Supplemental Indentures Without
Consent of Holders. . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.2 Supplemental Indentures With
Consent of Holders. . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.3 Execution of Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . 80
SECTION 11.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . 80
SECTION 11.6 Reference in Debt Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . 80
SECTION 11.7 Notice of Supplemental Indenture. . . . . . . . . . . . . . . 80
ARTICLE XII
COVENANTS. . . . . . . . . . . . . . . . 81
SECTION 12.1 Payment of Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 12.2 Payment of Additional Amounts . . . . . . . . . . . . . . . . 81
SECTION 12.3 Maintenance of Office or Agency . . . . . . . . . . . . . . . 83
SECTION 12.4 Money for Debt Securities; Payments To Be Held in
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 12.5 Corporate Existence . . . . . . . . . . . . . . . . . . . . . 86
SECTION 12.6 Purchase of Debt Securities by Company. . . . . . . . . . . . 86
SECTION 12.7 Limitation on Disposition of Voting
Stock of, and Merger and Sale of Assets
by, Major Constituent Banks . . . . . . . . . . . . . . . . 87
SECTION 12.8 Limitation On Creation of Liens . . . . . . . . . . . . . . . 87
SECTION 12.9 Exempted Transactions . . . . . . . . . . . . . . . . . . . . 87
SECTION 12.10 Officers' Certificate as to Default; Notice of
Default . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 12.11 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 88
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES. . . . . . . . . . . 89
SECTION 13.1 Applicability of Article. . . . . . . . . . . . . . . . . . . 89
SECTION 13.2 Tax Redemption; Special Tax
Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 13.3 Election to Redeem; Notice to
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Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 13.4 Selection by Trustee of Debt
Securities to Be Redeemed . . . . . . . . . . . . . . . . . 92
SECTION 13.5 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 93
SECTION 13.6 Deposit of Redemption Price . . . . . . . . . . . . . . . . . 94
SECTION 13.7 Debt Securities Payable on
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 13.8 Debt Securities Redeemed in Part. . . . . . . . . . . . . . . 96
ARTICLE XIV
SINKING FUNDS. . . . . . . . . . . . . . . 96
SECTION 14.1 Applicability of Article. . . . . . . . . . . . . . . . . . . 96
SECTION 14.2 Satisfaction of Mandatory Sinking
Fund Payments with Debt Securities. . . . . . . . . . . . . 97
SECTION 14.3 Redemption of Debt Securities for
Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . 97
ARTICLE XV
DEFEASANCE. . . . . . . . . . . . . . . . 100
SECTION 15.1 Applicability of Article. . . . . . . . . . . . . . . . . . . 100
SECTION 15.2 Defeasance Upon Deposit of Moneys or U.S.
Government obligations. . . . . . . . . . . . . . . . . . . 100
SECTION 15.3 Deposited Moneys and U.S Government Obligations to
Be Held in Trust. . . . . . . . . . . . . . . . . . . . . . 102
SECTION 15.4 Repayment to Company. . . . . . . . . . . . . . . . . . . . . 102
ARTICLE SIXTEEN
CONVERSION OF DEBT SECURITIES. . . . . . . . . . . 102
SECTION 16.1 Applicability of Article. . . . . . . . . . . . . . . . . . . 103
SECTION 16.2 Exercise of Conversion Privilege. . . . . . . . . . . . . . . 103
SECTION 16.3. Fractional Interests. . . . . . . . . . . . . . . . . . . . . 104
SECTION 16.4. Adjustment of Conversion Price. . . . . . . . . . . . . . . . 105
SECTION 16.5. Continuation of Conversion Privilege in Case of
Merger, Consolidation or Sale of Assets . . . . . . . . . . 108
SECTION 16.6. Notice of Certain Events. . . . . . . . . . . . . . . . . . . 110
SECTION 16.7. Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . 110
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PAGE
SECTION 16.8. Company to Provide Stock. . . . . . . . . . . . . . . . . . . 111
SECTION 16.9. Disclaimer of Responsibility for Certain Matters. . . . . . . 112
SECTION 16.10. Return of Funds Deposited for
Redemption of Converted Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 112
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A
EXHIBIT B
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1
INDENTURE dated as of February __, 1995, between BARNETT BANKS, INC.,
a Florida corporation (hereinafter called the "Company"), having its principal
executive office at 50 North Laura Street, Jacksonville, Florida, 32202 and THE
FIRST NATIONAL BANK OF CHICAGO, a _________ banking association (hereinafter
called the "Trustee"), having its Corporate Trust Office at One First National
Plaza, Chicago, Illinois 60670.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
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2
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are
defined in those respective Articles.
"Act" when used with respect to any Holder has the meaning specified
in Section 8.1.
"Affected Security" has the meaning specified in Section 13.2(b).
"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" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five
<PAGE>
3
days in each calendar week, 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 in such city.
"Banking Subsidiary" means any Subsidiary organized under the laws of
the United States or of any state, commonwealth, territory or possession thereof
and which conducts a commercial, merchant or other banking business, or a trust
business.
"Bearer Security" means any Debt Security (with or without Coupons),
in the form established pursuant to Section 2.1, which is payable to bearer
(including any Global Note) and title to which passes by delivery only, but does
not include any Coupons.
"Board of Directors" means either the board of directors of the
Company, or any committee of that board duly authorized to act in respect
hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies in that Place of Payment
or other location are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 3.1.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres S.A.
"Code" means the Internal Revenue Code of 1986, as amended and as in
effect on the date hereof.
<PAGE>
4
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means the common stock, $2.00 par value, of the
Company as the same exists on the date of execution and delivery of this
Indenture or as such stock may be reconstituted.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.10 (i)
"Consolidated Banking Assets" means all assets owned directly or
indirectly by a Banking Subsidiary and reflected on the Company's consolidated
balance sheet prepared in accordance with generally accepted accounting
principles applicable to banks and banks holding companies.
"Controlled Subsidiary" means any Subsidiary more than 80% of the
outstanding shares of the Voting Stock of which is at the time owned directly or
indirectly by the Company or by one or more Controlled Subsidiaries or by the
Company and one or more Controlled Subsidiaries.
"Conversion Agent" means any Person authorized by the
Company to accept Debt Securities for conversion hereunder on behalf of the
Company.
<PAGE>
5
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and for
the settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency unit
other than the ECU to be used for the purposes for which it was established.
"Conversion Price" has the meaning specified in Section 16.4.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this instrument is
located at One First National Plaza, Chicago, Illinois 60670.
The term "corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest coupon appertaining to any Bearer
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Trustee for purposes of Section 3.10;
provided that such agent shall accept such appointment in writing and the terms
of such appointment shall be acceptable to the Company and shall, in the opinion
of the Company and the Trustee at the time of such appointment, require such
agent to make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making of such
decision or determination.
<PAGE>
6
"Date of Conversion" has the meaning specified in Section 16.2.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities (including any Global
Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discharged" has the meaning specified in Section 15.2.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time of payment is legal tender for
the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
<PAGE>
7
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Officer's Certificate" means a telecopy or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar, Foreign Currency or Currency unit amounts of principal, premium, if any,
and any interest respectively (on an aggregate basis and on the basis of a Debt
Security having the lowest denomination principal amount pursuant to Section 3.2
in the relevant Currency or Currency unit), payable on the basis of such Market
Exchange Rate sent (in the case of a telecopy) or signed (in the case of a
certificate) by the Treasurer or any Assistant Treasurer of the Company.
"Event of Default" has the meaning specified in Section 5.1.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate
(excluding amounts payable pursuant to Section 12.2 or 13.2).
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index or any other index specified pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency unit
the value of which is determined by reference to the values of the currencies of
any group of countries.
"Global Note" means a Registered or Bearer Security evidencing all or
part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered
<PAGE>
8
into pursuant to the applicable provisions hereof and, unless the context
otherwise requires, shall include the terms of a particular series of Debt
Securities as established pursuant to Section 3.1.
The term "interest", when used with respect to a Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity and, when used with respect to a Bearer Security, includes any
additional amounts payable on such Bearer Security pursuant to Section 12.2 or
13.2.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Last Sale Price" has the meaning specified in Section 16.3.
"Major Constituent Bank" means any Banking Subsidiary, the
Consolidated Banking Assets of which constitute 10% or more of the Company's
Consolidated Banking Assets.
"Market Exchange Rate" means (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.1 for the
securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency. In the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent, if any, or if
there shall not be a Currency Determination Agent, then the Trustee,
<PAGE>
9
shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New York City,
London or other principal market for such Currency or Currency unit in question,
or such other quotations as the Currency Determination Agent or the Trustee, as
the case may be, shall deem appropriate. Unless otherwise specified by the
Currency Determination Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more than one market for
dealing in any Currency or Currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such Currency or
Currency unit shall be that upon which a nonresident insurer of securities
designated in such Currency or Currency unit would purchase such Currency or
Currency unit in order to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder thereof or otherwise.
"Mortgage" means any mortgage, lien, pledge or other encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company) or an Affiliate of
the Company and who shall be satisfactory to the Trustee, which is delivered to
the Trustee.
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
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10
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt 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 Debt Securities and any coupons thereto
appertaining: provided, however, that if such Debt Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Debt Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company; and
(iv) Debt Securities converted into Common Stock pursuant hereto and,
for purposes of selection for redemption, Debt Securities not deemed
Outstanding pursuant to Section 13.4;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such Act, only Debt
Securities which the Trustee knows to be so owned shall be so disregarded, Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act with respect to such Debt Securities and that the pledgee
is not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other
<PAGE>
11
obligor. In determining whether the Holders of the requisite principal amount
of Outstanding Debt Securities have performed any Act hereunder, the principal
amount of a Discount Security that shall be deemed to be Outstanding for such
purpose 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 5.2 and the principal amount of a
Debt Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant to Section
3.10(k).
"Overdue Rate", when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 3.1.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Permanent Global Note" shall have the meaning given such term in
Section 3.4.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as specified
pursuant to Section 3.1.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.6 in
lieu of a mutilated, lost, destroyed or stolen Debt Security or a Debt Security
to which a mutilated, lost, destroyed or stolen Coupon appertains shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Debt Security or the Debt
<PAGE>
12
Security to which the mutilated, lost, destroyed or stolen Coupon appertains, as
the case may be.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 3.1, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.2, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 2.1 which is registered as to principal and interest in the
Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date specified
for the purpose pursuant to Section 3.1 for such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means the
chairman or any vice-chairman of the board of directors, the chairman of any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
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13
"Restricted Period" shall have the meaning as set forth in U.S.
Treasury Regulation Section 1.163-5 (c)(2)(i)(D)(7) .
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5(a).
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Specified Amount" has the meaning specified in Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon means
the date specified in such Debt Security or the Coupon, if any, representing
such installment of interest, as the date on which the principal of such Debt
Security or such installment of principal, premium or interest is due and
payable.
"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 other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock having voting power for the election of directors, whether at all times or
only for so long as no senior class of stock has such voting power by reason of
any contingency.
"Tangible Stockholders' Equity" as of any date means the aggregate of
(i) capital (including all preferred stock, common stock and capital surplus)
and (ii) retained earnings, after deducting intangibles (other than goodwill,
net of accumulated amortization, existing as of December 31, 1988), any
contra-equity account, and the cost of shares of capital stock held in treasury,
all as would be shown on a consolidated balance sheet of the Company and its
subsidiaries as of such date prepared in accordance with generally accepted
accounting principles.
"Temporary Global Note" shall have the meaning given such term in
Section 3.4.
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14
"Trading Day" has the meaning specified in Section 16.3.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 11.5.
"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 (including the Commonwealth of Puerto Rico).
"United States Alien" means any person who, as to the United States,
is a foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more
members of which is, as to the United States, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 3.1 until
a successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Debt Securities of any series shall mean the U.S. Depositary with respect to
the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
15.2.
<PAGE>
15
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be, whether or
not designated by a number or word or words added before or after the title
"Vice President".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at the
time, directly or indirectly, owned by the Company, or by one or more Wholly-
Owned Subsidiaries of the Company, or by the Company and one or more
Wholly-Owned Subsidiaries.
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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16
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate of 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
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17
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Notices, etc., to Trustee and Company.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, (attention: Corporate Trust Trustee
Administration), or
(2) The Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid or airmail postage
prepaid if sent from outside the United States, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this instrument, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 1.5 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided)
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18
if in writing and mailed, first-class postage prepaid, to such Registered
Holders as their names and addresses appear in the Security Register, within the
time prescribed, and (2) such notice shall be sufficiently given to Holders of
Bearer Securities or Coupons (unless otherwise herein expressly provided) if
published at least twice in an Authorized Newspaper or Newspapers in The City of
New York and, if Debt Securities of such series are then listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, in a daily newspaper in London or
Luxembourg or in such other city or cities specified pursuant to Section 3.1 or
in any Debt Security on Business Days, the first such publication to be not
earlier than the earliest date and not later than two Business Days prior to the
latest date prescribed for the giving of such notice: provided, however, that,
in any case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 3.1, shall be sufficiently given if given in the manner
specified pursuant to Section 3.1.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder, shall affect the sufficiency of such notice with
respect to other
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19
Holders, and any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. In any case where notice to
Holders is given by publication, any defect in any notice so published as to
any particular Holder shall not affect the sufficiency of such notice with
respect to other Holders, and any notice which is published in the manner
herein provided shall be conclusively presumed to have been duly given.
SECTION 1.6 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 1.7 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 1.8 Successors and Assigns.
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
SECTION 1.9 Separability Clause.
In case any provision in this Indenture or in the Debt 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 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
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20
SECTION 1.11 Governing Law.
This Indenture, the Debt Securities and the Coupons shall be deemed to
be contracts made and to be performed entirely in the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State without regard to the conflicts of law rules of said State.
SECTION 1.12 Legal Holidays.
Unless otherwise specified pursuant to Section 3.1 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
SECTION 1.13 No Security Interest Created.
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
SECTION 1.14 Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any stockholder, officer or director, as such, past, present or future, of the
Company (or any
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21
incorporator, stockholder, officer or director of any predecessor or successor
corporation), either directly or through the Company (or any such predecessor or
successor corporation), 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 agreed and understood that this Indenture and all the Debt
Securities and Coupons are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or any
such predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Debt Securities or
Coupons or to be implied herefrom or therefrom; and that any such personal
liability is hereby expressly waived and released as a condition of, and as part
of the consideration for, the execution of this Indenture and the issue of
Securities; provided, however, that nothing herein or in the Debt Securities or
Coupons contained shall be taken to prevent recourse to and the enforcement of
the liability, if any, of any stockholder or subscriber to capital stock upon or
in respect of the shares of capital stock not fully paid.
ARTICLE II
DEBT SECURITY FORMS
SECTION 2.1 Forms Generally.
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and 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 or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply
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22
with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation or any securities exchange on which any series of the Debt
Securities may be listed, or to conform to usage, all as determined by the
officers executing such Debt Securities and Coupons as conclusively evidenced by
their execution of such Debt Securities and Coupons. If the form of a series of
Debt Securities or Coupons (or any Global Note) is established in or pursuant to
a Board Resolution, a copy of such Board Resolution shall be delivered to the
Trustee, together with an Officers' Certificate setting forth the form of such
series, at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Debt Securities (or any such
Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.1, Debt
Securities in bearer form (other than in global form) shall have coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which such series of Debt
Securities may be listed, all as determined by the officers executing such Debt
Securities and Coupons, as conclusively evidenced by their execution of such
Debt Securities and Coupons.
SECTION 2.2 Form of Trustee's Certificate of
Authentication.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By_____________________________
Authorized Signatory
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23
ARTICLE III
THE DEBT SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and (subject to Section 3.3)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 3.4, 3.5, 3.6, 11.6 or
13.8);
(3) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and premium, if
any, on) the Debt Securities of such series are or may be payable (which,
if so provided in such Board Resolution or supplemental indenture may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time);
(4) the rate or rates (or the method of determination thereof) at
which the Debt Securities of the series shall bear interest, if any, and
the dates from which such interest shall accrue (which, in either case or
both, if so
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24
provided in such Board Resolution or supplemental indenture may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time), the Interest Payment
Dates on which such interest shall be payable (or the method of
determination thereof), and, in the case of Registered Securities, the
Regular Record Dates for the interest payable on such Interest Payment
Dates and, in the case of Floating Rate Securities, the notice, if any, to
Holders regarding the determination of interest and the manner of giving
such notice, and the extent to which, or the manner in which, any interest
payable on any Global Note on an Interest Payment Date will be paid if
other than in the manner provided in Section 3.7;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable;
(6) the obligation, if any, of the Company to redeem or purchase Debt
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder and the period or periods within
which or the dates on which, the prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(7) the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon which Debt
Securities of the series may be redeemed, if any, in whole or in part, at
the option of the Company or otherwise;
(8) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.4);
(9) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount
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25
with which such Debt Securities may be issued and, if other than the
principal amount thereof, the portion of the principal amount of Debt
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2;
(10) provisions, if any, for the defeasance of Debt Securities of the
series;
(11) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, the applicable certification procedures pursuant to
Section 3.4(d), whether Coupons will be attached thereto, whether Bearer
Securities of the series may be exchanged for Registered Securities of the
series, or whether Registered Securities of the series may be exchanged for
Bearer Securities of the series, as provided in Section 3.5(b) or otherwise
and the circumstances under which and the place or places at which any
exchanges, if permitted, may be made;
(12) whether the provisions of Section 12.2 and 13.2 or other
provisions for payment of additional amounts of tax redemptions shall apply
and, if other provisions shall apply, such other provisions, whether a
procedure other than that set forth in Section 3.4(b) shall apply and, if
so, such other procedure, and if the procedure set forth in Section 3.4(b)
shall apply, the forms of certifications to be delivered under such
procedure;
(13) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated, or in which
payment of the principal of (and/or premium, if any) and/or interest on the
Debt Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or proxy
to one vote for purposes of Section 9.5;
(14) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are
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26
denominated or payable without such election, in addition or in lieu
of the provisions of Section 3.10, the period or periods within which
and the terms and conditions upon which, such election may be made
and the time and the manner of determining the exchange rate or rates
between the Currency or Currencies in which the Debt Securities are
denominated or payable without such election and the Currency or Currencies
in which the Debt Securities are to be paid if such election is made;
(15) the date as of which any Bearer Securities of the series and any
global Debt Security representing any Outstanding Debt Securities of the
series shall be dated if other than the date of original issuance of the
first Debt Security of the Series to be issued;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
(17) if the Debt Securities of the series denominated or payable in a
Foreign Currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(18) the designation of the original Currency Determination Agent;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.1;
(21) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series; and
(22) if Bearer Securities of the series are to be issued, in addition
to or in substitution for the provisions
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27
set forth in Sections 3.3, 3.4 and 3.5, (x) whether interest in respect of
any portion of a temporary Debt Security in global form (representing all
of the Outstanding Bearer Securities of the series) payable in respect of
any Interest Payment Date prior to the exchange of such temporary Debt
Security for definitive Debt Securities of the series shall be paid to any
clearing organization with respect to the portion of such temporary Debt
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date, and (y) the
terms upon which interests in such temporary Debt Security in global form
may be exchanged for interests in a permanent Global Note or for definitive
Debt Securities of the series and the terms upon which interests in a
permanent Global Note, if any, may be exchanged for definitive Debt
Securities of the series;
(23) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
(24) whether the Debt Securities will be convertible into Common
Stock and, if so, the terms and conditions upon which such conversion will
be effected including the initial Conversion Price or rate, the conversion
period and other provisions in addition to or in lieu of those described
herein; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.3) set forth in such Officers' Certificate, or in any such indenture
<PAGE>
28
supplemental hereto. All Debt Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 Denominations.
In the absence of any specification pursuant to Section 3.1 with
respect to Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.3 Execution, Authentication, Delivery
and Dating.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, its President, one of its
Vice Presidents or its Treasurer, under its corporate seal reproduced thereon
and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery
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29
of such Debt Securities and Coupons and the Trustee in accordance with the
Company Order shall authenticate and make available for delivery such Debt
Securities and Coupons; PROVIDED, HOWEVER, that no Bearer Security that has been
sold during the Restricted Period shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a Bearer Security may
be delivered by the Company in definitive form only if the Person entitled to
receive such Bearer Security shall have furnished a certificate substantially in
the form set forth in Exhibit A to this Indenture. If all the Debt Securities
of any one series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities such as interest rate, Stated Maturity, date of issuance
and date from which interest, if any, shall accrue. If any Debt Security shall
be represented by a permanent Global Note, then, for purposes of this Section
and Section 3.4, the notation of a beneficial owner's interest therein upon
original issuance of such Debt Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in definitive form by the
Company of such beneficial owner's interest in such permanent Global Note.
Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons for interest then matured
have been detached and cancelled.
Subject to the second succeeding paragraph, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, prior to the authentication and delivery of the Debt Securities
and Coupons of such series, (i) the supplemental indenture or the Board
Resolution by or pursuant to which the form and terms of such Debt Securities
and Coupons have been approved, (ii) an Officers' Certificate as to the absence
of any event which is, or after notice or lapse of time or both would become, an
Event of Default, and (iii) an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities and
Coupons conform to the requirements of this Indenture and, in the case of
an underwritten offering of such Debt Securities, constitute sufficient
authority hereunder for the Trustee to
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30
authenticate and deliver such Debt Securities and Coupons, or, in the case
of a continuous offering of such Debt Securities, upon delivery of such
additional instruments specified in the Company Order delivered pursuant to
this Section 3.3, will constitute sufficient authority hereunder for the
Trustee to authenticate and deliver such Debt Securities and Coupons;
(2) in the case of an underwritten offering of a series of Debt
Securities, the forms and terms of such Debt Securities and Coupons have
been established in conformity with the provisions of this Indenture, or,
in the case of a continuous offering of a series of Debt Securities, the
forms and terms of any such Debt Security, when completed in accordance
with the Company Order delivered pursuant to this Section 3.3, will have
been established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities and
Coupons have been established in a supplemental indenture, the execution
and delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture has
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes the
legally valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to the
availability of the equitable remedies of specific performance or
injunctive relief being subject to the discretion of the court before which
any proceeding may be brought and subject to such other exceptions or
qualifications as counsel shall reasonably request;
(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all necessary corporate action of the Company;
in the case of an underwritten offering of a series of Debt Securities,
such Debt Securities and Coupons have been duly executed by the Company,
or, in the case of a continuous offering of a series of Debt Securities,
when the terms of any such Debt
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31
Security are completed in accordance with the Company Order delivered
pursuant to this Section 3.3 and such Debt Security is duly executed by the
Company, and, in either case, assuming due authentication by the Trustee
and delivery by the Company, such Debt Securities constitute, or will
constitute, as the case may be, the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
entitled to the benefit of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to the
availability of the equitable remedies of specific performance or
injunctive relief being subject to the discretion of the court before which
any proceeding may be brought and subject to such other exceptions or
qualifications as counsel shall reasonably request;
(5) all laws and requirements in respect of the execution and
delivery by the Company of such Debt Securities have been complied with;
and
(6) the amount of Debt Securities Outstanding of such series,
together with the amount of the Debt Securities to be authenticated
pursuant to the Company Order delivered pursuant to this Section 3.3, does
not exceed any limit established under the terms of this Indenture on the
amount of Debt Securities of such series that may be authenticated and
delivered.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the second
preceding paragraph, if all Debt Securities of a series are to be offered on a
continuous basis, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1, the Company Order or the Opinion of
Counsel otherwise required pursuant to such second preceding paragraph at or
prior to the time of authentication of each such
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32
Debt Security if such documents are delivered at or prior to the time of
authentication upon original issuance of the first such Debt Security to be
issued.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary, or permanent or
definitive Bearer Security in global form) shall be dated as of the date of
original issuance of the first Debt Security of such series to be issued, except
as otherwise provided pursuant to Section 3.1 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Debt Securities; Exchange
of Temporary Global Notes for Definitive
Bearer Securities.
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Registered Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination for Registered Securities of such
series, substantially of the tenor of the definitive Registered Securities in
lieu of which they are issued and with such
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33
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every such
temporary Registered Security shall be executed by the Company and shall be
authenticated and made available for delivery by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Registered Securities in lieu of which they are issued. In the
case of any series issuable as Bearer Securities, such temporary Debt Securities
may be in global form, representing such of the Outstanding Debt Securities of
such series as shall be specified therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.5 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations and of a like Stated
Maturity and like terms and provisions; provided, however, unless otherwise
specified pursuant to Section 3.1, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security (including a definitive Bearer
Security in global form) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 3.3. Until
so exchanged, the temporary Registered Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
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34
(b) Unless otherwise specified pursuant to Section 3.1, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date which is 40 days after the closing of the sale of
Debt Securities (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes without interest coupons. On
or after the Exchange Date such temporary Global Note shall be surrendered by
the Common Depositary to the Trustee, as the Company's agent for such purpose,
at its principal office in London (or at such other place specified outside the
United States pursuant to Section 3.1) and following such surrender, the Trustee
shall (1) endorse the temporary Global Note to reflect the reduction of its
principal amount by an equal aggregate principal amount of such permanent Global
Note, (2) endorse the applicable permanent Global Note, if any, to reflect the
initial amount, or an increase in the amount of Debt Securities represented
thereby, (3) manually authenticate such definitive Debt Securities or such
permanent Global Note, as the case may be, (4) deliver such definitive Debt
Securities or such permanent Global Note to the Common Depositary to be held
outside the United States for the accounts of the Euro-clear Operator or CEDEL,
as the case may be, for credit to the respective accounts at Euro-clear Operator
or CEDEL, as the case may be, designated by or on behalf of the beneficial
owners of
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35
such Debt Securities (or to such other accounts as they may direct) and
(5) redeliver such temporary Global Note to the Common Depositary, unless
such temporary Global Note shall have been cancelled in accordance with Section
3.8 hereof; provided, however, that, unless otherwise specified in such
temporary Global Note, in the case of definitive Debt Securities or a permanent
Global Note to be delivered in bearer form, upon such presentation by the Common
Depositary, such temporary Global Note shall be accompanied by a certificate
dated the Exchange Date, or a subsequent date and signed by the Euro-clear
Operator, as to the portion of such temporary Global Note held for its account
then to be exchanged for definitive Debt Securities or one or more permanent
Global Notes, as the case may be, and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities,
or one or more permanent Global Notes, as the case may be, each substantially in
the form set forth in Exhibit B to this Indenture. Each certificate
substantially in the form of Exhibit B hereto of the Euroclear Operator or
CEDEL, as the case may be, shall be based on certificates of the account holders
listed in the records of the Euro-clear Operator or CEDEL, as the case may be,
as being entitled to all or any portion of the applicable temporary Global Note.
An account holder of the Euro-clear Operator or CEDEL, as the case may be,
desiring to effect the exchange of an interest in a temporary Global Note for an
interest in definitive Debt Securities or one or more permanent Global Notes
shall instruct the Euro-clear Operator or CEDEL, as the case may be, to request
such exchange on its behalf and shall deliver to the Euro-clear Operator or
CEDEL, as the case may be, a certificate substantially in the form of Exhibit A
hereto and dated no earlier than 15 days prior to the Exchange Date. Until so
exchanged, temporary Global Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities and permanent Global
Notes of the same series authenticated and delivered hereunder, except as to
payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of
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36
this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee shall authenticate and make available for delivery, in
exchange for each portion of such temporary Global Note or such permanent Global
Note, an equal aggregate principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and with
like terms and conditions, as the portion of such temporary Global Note or such
permanent Global Note to be exchanged, which, unless the Debt securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as contemplated by Section 3.1, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that definitive Bearer Securities
shall be delivered in exchange for a portion of the temporary Global Note only
in compliance with the requirements of the second preceding paragraph. On or
prior to the forty-fifth day following receipt by the Trustee of such notice
with respect to a Debt Security (and receipt of appropriate certification
referred to in the second preceding paragraph, in the case of definitive Bearer
Securities to be received in exchange for a portion of the temporary Global
Note), or, if such day is not a Business Day, the next succeeding Business Day,
the temporary Global Note or the permanent Global Note, as the case may be,
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Debt Securities without charge following such surrender, upon the
request of the Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the permanent Global
Note to reflect the reduction of its principal amount by the aggregate principal
amount of such Debt Security, (2) cause the terms of such Debt Security and
Coupons, if any, to be entered on a
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37
definitive Debt Security, (3) manually authenticate such definitive Debt
Security, and (4) deliver such definitive Debt Security outside the United
States to the Euro-clear Operator or CEDEL, as the case may be, for or on behalf
of the beneficial owner thereof, in exchange for a portion of such temporary
Global Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary Global Note or
the permanent Global Note shall be delivered only outside the United States.
Notwithstanding the foregoing, in the event of redemption or acceleration of all
or any part of a temporary Global Note prior to the Exchange Date, a permanent
Global Note or definitive Bearer Securities, as the case may be, will not be
issuable in respect of such temporary Global Note or such portion thereof, and
payment thereon will instead be made as provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the date of receipt by the Trustee of the certification
described in the fourth preceding paragraph of this Section 3.4(b) substantially
in the form of Exhibit B hereto shall be payable to the Euro-clear Operator or
CEDEL on such Interest Payment Date only upon delivery by the Euro-clear
Operator or CEDEL to the Trustee of a certificate or certificates substantially
in the form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Note on such
Interest Payment Date and who have
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38
each delivered to the Euro-clear Operator or CEDEL, as the case may be, a
certificate substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.4.
(c) If the Company shall establish pursuant to Section 3.1 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and make available for delivery one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Notes, (ii)
shall be registered in the name of the U.S. Depositary for such Global Note or
Notes or the nominee of such depositary, (iii) shall be delivered by the Trustee
to such depositary or pursuant to such depositary's instruction and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Debt Securities in definitive form, this Debt
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section or Section 3.5,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. 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 U.S.
Depositary for such series or a nominee of such successor depositary.
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39
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be registered or in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Debt Securities of such series. If a successor
U.S. Depositary for the Debt Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and make available for delivery, Registered
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and make available for delivery, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 3.1 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and make available for delivery, without charge,
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of
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40
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 Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Debt Securities available for delivery to the persons in whose
names such Debt Securities are so registered.
(d) With respect to Exhibits A and B to this Indenture, the Company
may, in its discretion and if required or desirable under applicable law,
substitute one or more other forms of such exhibits for such exhibits, eliminate
the requirement that any or all certificates be provided, or change the time
that any certificate may be required, provided that such substitute form or
forms or notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with a Company Request and such form
or forms, elimination or change is reasonably acceptable to the Trustee.
SECTION 3.5 Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and
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41
registering transfers and exchanges of Registered Securities as herein provided;
PROVIDED, HOWEVER, that the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of such denominations as are authorized for Registered Securities of such series
and of a like Stated Maturity and with like terms and conditions.
At the option of the Holder, Registered Securities of any series
(except Global Notes) may be exchanged for other Registered Securities of the
same series of like aggregate principal amount and of a like Stated Maturity and
with like terms and conditions, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Securities which
the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.1, the
provisions of this Section 3.5(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.1 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the
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42
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that except as otherwise provided in Section 12.3, interest
represented by Coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions 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 proposed
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 (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Registered Security or Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.1, in no
event may Registered Securities, including Registered
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43
Securities received in exchange for Bearer Securities, be exchanged for Bearer
Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidenced the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company, the Trustee and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.4(b) or 3.6. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.4 and
ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part; PROVIDED, HOWEVER, that, unless otherwise specified pursuant
to Section 3.1, if any Bearer Securities of any series which pursuant to Section
3.5(b) or as otherwise provided pursuant to Section 3.1 are exchangeable for
Registered Securities are called for redemption pursuant to Section 13.2, such
Bearer Security, to the extent permitted by applicable law, may be exchanged for
one or more Registered Securities of such series as provided in Section 3.5(b)
or otherwise during the period preceding any Redemption Date.
<PAGE>
44
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Debt Securities.
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office (in the
case of Registered Securities) or at its principal London office (in the case of
Bearer Securities), or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice that such Debt
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall authenticate and make
available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Debt Security or in exchange for the Coupon Security
to which such mutilated, destroyed, lost or stolen coupon appertained, a new
Debt Security of the same series of like Stated Maturity and with like terms and
conditions and like principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with such Coupons attached
thereto that neither gain nor loss in interest shall result from such exchange
or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; PROVIDED, HOWEVER,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.3, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.
Upon the issuance of any new Debt 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 respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE>
45
Every new Debt Security or Coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
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 Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
SECTION 3.7 Payment of Interest; Interest Rights
Preserved.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Payment of
interest on Registered Securities shall be made at the offices of the Paying
Agent or Paying Agents specified pursuant to Section 3.1 or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if, and to the extent,
provided pursuant to Section 3.1, at the option of the Registered Holder by wire
transfer to an account designated by the Registered Holder.
(b) Subject to the certification requirements set forth in the fifth
paragraph of Section 3.4(b), interest on any Coupon Security which is payable
and is punctually paid or duly provided for on any Interest Payment Date shall
be paid to the Holder of the Coupon which has matured on such Interest Payment
Date upon surrender of such Coupon on such Interest Payment Date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 3.1.
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46
Subject to the certification requirements set forth in the fifth
paragraph of Section 3.4(b), interest on any Bearer Security (other than a
Coupon Security) which is payable and is punctually paid or duly provided for on
any Interest Payment Date shall be paid to the Holder of the Bearer Security
upon presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the principal London office of the Trustee or at such other
Place of Payment outside the United States specified pursuant to Section 3.1.
Unless otherwise specified pursuant to Section 3.1, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, payment on
such Bearer Security or Coupon will be made by check drawn on a bank in The City
of New York or, if agreeable to the Trustee, by wire transfer to a Dollar
account maintained by such Holder outside the United States. If such payment at
the offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.1, at the
direction of the Holder of any Bearer Security or Coupon payable in a Foreign
Currency, payment on such Bearer Security or Coupon will be made by a check
drawn on a bank outside the United States or by wire transfer to an appropriate
account maintained by such Holder outside the United States. Except as provided
in this paragraph, no payment on any Bearer Security or Coupon will be made by
mail to an address in the United States or by wire transfer to an account in the
United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered Securities (or their
respective Predecessor
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47
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money in the
Currency or Currency unit in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Sections 3.1 or
3.10) 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 date shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the
Holders of such Registered Securities at their address as they appear in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
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48
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.5
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.8 Cancellation.
Unless otherwise specified pursuant to Section 3.1 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Registered Securities and
matured coupons so delivered shall be promptly cancelled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be cancelled or held
for reissuance. Bearer Securities and unmatured Coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.5
or in replacement of mutilated, lost, stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related Coupons pursuant to Section 3.6. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Debt Securities or Coupons previously authenticated
and delivered hereunder which the Company may have acquired in any
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49
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Debt Securities previously
authenticated hereunder which the Company has not issued, and all Debt
Securities or Coupons so delivered shall be promptly cancelled by the Trustee.
No Debt Securities or coupons shall be authenticated in lieu of or in exchange
for any Debt Securities or Coupons cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Debt Securities and
Coupons held by the Trustee shall be delivered to the Company upon Company
Request. The acquisition of any Debt Securities or Coupons by the Company shall
not operate as a redemption or satisfaction of the indebtedness represented
thereby unless and until such Debt Securities or Coupons are surrendered to the
Trustee for cancellation. In the case of any temporary Global Note which shall
be destroyed if the entire aggregate principal amount of the Debt Securities
represented thereby has been exchanged, the certificate of destruction shall
state that all certificates required pursuant to Section 3.4 hereof and
substantially in the form of Exhibit B hereto, to be given by the Euro-clear
Operator or CEDEL, have been duly presented to the Trustee by the Euro-clear
Operator or CEDEL, as the case may be. Permanent Global Notes shall not be
destroyed until exchanged in full for definitive Debt Securities or until
payment thereon is made in full.
SECTION 3.9 Computation of Interest.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.10 Currency Debt Securities.
(a) Except as otherwise specified pursuant to Section 3.1 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided
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50
for in paragraph (c) below, except as provided in paragraph (e) below, payment
of the principal of (and premium, if any) and any interest on any Registered
Security of such series will be made in the Currency in which such Registered
Security is payable.
(c) It may be provided pursuant to Section 3.1 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the Paying
Agent a written election, to be in form and substance satisfactory to the Paying
Agent, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has been given by the Company
pursuant to Article Thirteen). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (b) of
this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.1, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities are payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the
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51
election referred to in paragraph (c) above has been provided for pursuant to
Section 3.1 and if at least one Holder has made such election, then, on the
second Business Day preceding each payment date, the Company will deliver to the
Trustee an Exchange Rate Officer's Certificate in respect of the Currency
payments to be made on such payment date. The Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (c) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency Unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Foreign
Currency, the ECU or such other Currency unit occurring after the last date on
which such Foreign Currency, the ECU or such other Currency Unit was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for use on each
such payment date. The Dollar amount to be paid by the Company to the Trustee
and by the Trustee or any Paying Agent to the Holders of such Registered
Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a Currency unit, the Dollar Equivalent
of the Currency unit, in each case as determined by the Currency Determination
Agent, if any, or, if there shall not be a Currency Determination Agent, then by
the Trustee, in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by
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52
the Trustee, and shall be obtained for each subsequent payment date by
converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent, if any, or, if there shall not be a
Currency Determination Agent, then by the Trustee, and subject to the provisions
of paragraph (i) below, shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect to
each payment.
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a Component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were represented in
the relevant Currency unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single Currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and such
amount shall thereafter be a Specified Amount and such single Currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more Currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more
Currencies with appropriate Dollar equivalents at the Market Exchange Rate on
the date of such replacement equal to the dollar equivalent of the Specified
Amount of such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If, after
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53
the Conversion Date of the relevant Currency unit, including but not limited to,
the ECU, a Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component Currency
of such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
"Election Date" shall mean the record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if within 16
or fewer days prior to the Maturity) immediately preceding the Maturity, and
with respect to any series of Debt Securities whose record date immediately
preceding the Maturity is more than 16 days prior to the Maturity or any series
of Debt Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 1.5 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to the ECU or
any other Currency in which Securities are denominated or payable, the Company,
after learning thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give written notice in the manner provided
in Section 1.5 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Currency Determination
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54
Agent, if any, and shall not otherwise have any duty or obligation to determine
such information independently.
(k) For purposes of any provision of the Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
SECTION 3.11 Judgments.
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency unit due hereunder
or under such Debt Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Debt Security so that in
<PAGE>
55
any event the Company's obligations hereunder or under such Debt Security will
be effectively maintained as obligations in such Currency, and the Company shall
be entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion over the amount due and
payable on the date of payment or distribution.
SECTION 3.12 Exchange Upon Default.
If default is made in the payments referred to in Sections 12.1 or
12.2, the Company hereby undertakes that upon presentation and surrender of a
permanent Global Note to the Trustee (or to any other Person or at any other
address as the Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the Trustee will
authenticate and deliver to the bearer of such permanent Global Note duly
executed and authenticated definitive Debt Securities with the same issue date
and maturity date as set out in such permanent Global Note.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of
Indenture.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which
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56
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (ii) Coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived under Section
3.5, (iii) Coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 13.7, and (iv) Debt Securities and Coupons of
such series for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 12.4) have
been delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation.
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the Company, and the Company,
in the case of (i), (ii) or (iii) of this subclause (B), has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to
Sections 3.1 or 3.10) sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium, if any)
and interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be; provided, however, in the event a petition for
relief under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to
<PAGE>
57
the Company, the obligations of the Company under this Indenture with
respect to such Debt Securities shall not be deemed terminated or
discharged;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Company has received from or there has been published by the
Internal Revenue Service a ruling to the effect that Holders of the Debt
Securities of the series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 12.4, shall survive. If, after the deposit referred to in
Section 4.1 has been made, (x) the Holder of a Debt Security is entitled to, and
does, elect pursuant to Section 3.10(c), to receive payment in a Currency other
than that in which the deposit pursuant to Section 4.1 was made, or (y) if a
Conversion Event occurs with respect to the Currency in which the deposit was
made or elected to be received by the Holder pursuant to Section 3.10(c), then
the indebtedness represented by such Debt Security shall be fully discharged to
the extent that the deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 12.4, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
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58
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 (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of interest upon any Debt Security or any
payment with respect to the Coupons, if any, of such series when it becomes
due and payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) the failure of the Company, subject to the provisions of
Section 12.11, to observe and perform the covenants contained in
Sections 12.7-12.9; or
(5) 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 expressly has been included
in this
<PAGE>
59
Indenture solely for the benefit of Debt Securities of a series other than
such series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry of a decree or order for relief in respect of the
Company or any Major Constituent Bank by a court having jurisdiction in the
premises in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or a decree or order adjudging
the Company or any Major Constituent Bank a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Major
Constituent Bank under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or any Major Constituent Bank or of any
substantial part of the property of the respective entity, or ordering the
winding up or liquidation of the affairs of the respective entity, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(7) the commencement by the Company or any Major Constituent Bank of
a voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or the consent by it to the entry of an
order for relief in an involuntary case under any such law or to the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or any Major
Constituent Bank or of any substantial part of the property of the relevant
entity, or the making by the Company or any Major Constituent Bank of an
assignment for the benefit of the creditors of the relevant entity, or the
admission by the Company or any
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60
Major Constituent Bank in writing of the inability of the relevant entity
to pay its debts generally as they become due, or the taking of corporate
action by the Company or any Major Constituent Bank in furtherance of any
such action; or
(8) indebtedness for borrowed money of the Company or any Major
Constituent Bank in excess of $5,000,000 (whether such indebtedness now
exists or is hereafter created) is not paid at final maturity or becomes or
is declared due and payable prior to the date or dates on which such
indebtedness would otherwise have become due and payable as a result of the
occurrence of one or more events of default as defined in any mortgages,
indentures, or instruments under which such indebtedness may have been
issued or by which such indebtedness may have been secured, and such
failure to pay or acceleration or accelerations, as the case may be, shall
not be rescinded, annulled, or cured prior to the expiration of 30 days
after the date such failure to pay or acceleration or accelerations
occurred; PROVIDED, HOWEVER, that if, prior to a declaration of
acceleration of the maturity of the Debt Securities of that series or the
entry of judgment in favor of the Trustee in a suit pursuant to Section
5.3, such failure to pay or acceleration or accelerations, as the case may
be, shall be rescinded, annulled or cured, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been thereupon
rescinded, annulled or cured without further action upon the part of either
the Trustee or any of the Holders of Debt Securities; and PROVIDED FURTHER
that, subject to the provisions of Sections 6.1 and 6.2, the Trustee shall
not be charged with knowledge of any such failure to pay or acceleration
unless either (a) a Responsible Officer of the Trustee assigned to its
corporate trust department shall, as such officer, have actual knowledge of
such default or (b) the Trustee shall have received written notice from the
Company or any Major Constituent Bank, any Holder, or the holder of any
such indebtedness; or
(9) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.1.
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment.
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If an Event of Default (other than an Event of Default specified in
clauses (6) and (7) of Section 5.1) with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders) and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in clause (6) or (7) of Section 5.1 occurs, such
principal amount shall IPSO FACTO become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
Upon payment of such amount in the Currency in which such Debt Securities are
denominated (except as otherwise provided pursuant to Sections 3.1 or 3.10), all
obligations of the Company in respect of the payment of principal of the Debt
Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Sections 3.1 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to any Coupons of such
series;
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration
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and interest thereon at the rate or rates prescribed therefor in such
Debt Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
or upon overdue payments on any Coupons at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; provided, however, that all sums
payable under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Debt Securities or any series,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount 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 Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons 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 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether
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the principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration of acceleration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such
series pursuant to a declaration in accordance with Section 5.2) (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of such Debt Securities and Coupons 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, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each such
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 such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
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SECTION 5.5 Trustee May Enforce Claims Without
Possession of Debt Securities.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected 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 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities or
Coupons of such series, in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debt Securities
or Coupons for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 Limitation on Suits.
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No Holder of any Debt Security or Coupon of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
5.7, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 5.8 Unconditional Right of Holders to Receive
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Principal, Premium and Interest and to
Enforce Conversion Rights.
Notwithstanding any other provision in this Indenture, but subject to
Article Sixteen, the Holder of any Debt Security or of any Coupon shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 3.7) interest on such Debt
Security or Coupon on the respective Stated Maturity or Maturities expressed in
such Debt Security or Coupon (or in the case of redemption, on the Redemption
Date), or, if applicable, to convert such security as provided in Article
Sixteen, or to institute suit for the enforcement of any such payment and
interest thereon or for the enforcement of any such right to convert, and such
rights shall not be impaired without the consent of the Holder.
SECTION 5.9 Restoration of Rights and
Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture 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 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture;
(2) subject to the provisions of Section 601, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders of Debt Securities of such series not
joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive any past default hereunder with
respect to such series and its consequences, except a default
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(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article XI cannot be modified or amended without the consent of the Holder
of each outstanding Debt 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 Debt 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 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
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SECTION 5.15 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 the 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 VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series the Trustee shall
by the pertinent methods provided in Section 1.5 give notice to all Holders of
Debt Securities and Coupons of such series 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
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payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(5) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to debt Securities of such series.
SECTION 6.3 Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be
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full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture, at the request or
direction of any of the Holders of Debt Securities of any series pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
including a Currency Determination Agent or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed, upon
advice of counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 6.4 Not Responsible for Recitals or
Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication,
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shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Debt Securities or
Coupons, if any, of any series. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof.
SECTION 6.5 May Hold Debt Securities.
The Trustee, 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 Debt Securities or Coupons, and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money in any currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the compensation and the
expenses and disbursements of its agents and counsel), except any such
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expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify in Dollars each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any and all loss, damage,
claims liability or expense including taxes (other than taxes based upon,
measured or determined by the income of the Trustee) incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust or performance of its duties
hereunder including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of amounts due on
the Debt Securities and Coupons.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(6) or (7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the series are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The obligations of the Company under this Section 6.7 shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture.
SECTION 6.8 Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
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.
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SECTION 6.9 Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States 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 and having its Corporate Trust Office in the United States of
America. 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. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointment by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, delivered to the Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section
6.8(a) with respect to the Debt Securities of any series after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 with
respect to the Debt Securities of any series and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
variancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding
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Debt Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Debt
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Debt
Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.5 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by
Successor.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.7.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series of which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all
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such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided 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 Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 6.13 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 Debt Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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SECTION 6.14 Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there may be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities
of each such series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000 and subject to supervision or examination by federal or State
authority. 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 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 any 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 any Authenticating Agent,
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt
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Securities for which it served as Authenticating Agent without the execution or
filing of any paper or any further act on the part of the Trustee for such
series or such Authenticating Agent. Any Authenticating Agent may at any time
and if it shall cease to be eligible shall resign, by giving written notice of
resignation to the applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
of all series of Debt Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of Debt Securities of such series in
the manner and to the extent provided in Section 1.5. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Company agrees to pay to the Authenticating Agent for such series
from time to time reasonable compensation for its services. The Authenticating
Agent for the Debt Securities of any series shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee for
such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in substitution for the form of certificate of authentication set forth in
Section 202, an alternative certificate of authentication in the following form:
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This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
As Trustee
By
-------------------------------
As Authenticating Agent
By
-------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the
Registered Securities of such series (or on semi-annual dates in each year
to be determined pursuant to Section 3.1 if the Registered Securities of
such series do not bear interest), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of the date 15 days next preceding each such Regular Record Date (or such
semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished.
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83
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
SECTION 7.2 Preservation of Information;
Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders (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 Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of
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Debt Securities with respect to their rights under this Indenture or under the
Debt Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of Holders of
Debt Securities of such series or of all Debt Securities as the case may
be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.2(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Debt Securities of such series or all Holders as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all
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such Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.2(b).
SECTION 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
To the extent that any such report is required by the Trust Indenture Act with
respect to any 12-month period, such report shall cover the 12-month period
ending March 15 and shall be transmitted by the next succeeding March 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the trustee with each stock exchange upon
which any Debt Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Debt Securities are listed on any
stock exchange.
SECTION 7.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the trustee within 15
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days after the same is so required to be filed with the Commission.
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 8.1 Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
SECTION 8.2 Proof of Ownership; Proof of
Execution of Instruments by Holders.
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other mark was
deposited with or
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exhibited to the person executing such certificate by the person named in such
certificate, or by any other proof of possession reasonably satisfactory to the
Trustee. The holding by the person named in any such certificate of any Bearer
Security specified therein shall be presumed to continue for a period of one
year unless at the time of determination of such holding (1) another certificate
bearing a later date issued in respect of the same Bearer Security shall be
produced, (2) such Bearer Security shall be produced by some other person, (3)
such Bearer Security shall have been registered on the Security Register, if,
pursuant to Section 3.1, such Bearer Security can be so registered, or (4) such
Bearer Security shall have been cancelled or paid.
Subject to the provisions of Section 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agency proxy shall be sufficient and conclusive in
favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgement of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
SECTION 8.3 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security
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for the purpose of receiving payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest, if any, on such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. The Company, the
Trustee, and any agent of the Company or the Trustee may treat the Holder of any
Bearer Security or of any Coupon as the absolute owner of such Bearer Security
or Coupon for the purposes of receiving payment thereof or on account thereof
and for all other purposes whatsoever, whether or not such Bearer Security or
Coupon be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary. All
payments made to any Holder or upon his order, shall be valid, and, to the
extent of the sum or sums paid, effectual to satisfy and discharge the liability
for moneys payable upon such Debt security or Coupon.
SECTION 8.4 Revocation of Consents; Future
Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.2,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt Security and
all past, present and future Holders of Coupons, if any, appertaining thereto
and of any Debt Securities and Coupons issued on transfer or in lieu thereof or
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or Coupons or such
other Debt Securities or Coupons.
ARTICLE IX
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HOLDERS' MEETINGS
SECTION 9.1 Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article IX for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article V;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
SECTION 9.2 Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 9.1, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.5. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
SECTION 9.3 Call of Meetings by Company or Holders.
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In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4 Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
SECTION 9.5 Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.3, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner
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appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.1) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
SECTION 9.6 Voting.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders 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 transmitted as provided in Section 9.2. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and
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secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.7 No Delay of Rights by Meeting.
Nothing contained in this Article IX shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture of the
Debt Securities of any series.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.1 Company May Consolidate, etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States or any State or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and
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interest on all the Debt Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) the corporation formed by such consolidation or into which the
Company shall have been merged or the Person to which such sale, lease or
other disposition shall have been made shall be a banking institution or a
bank holding company subject to Federal or State authority; and
(4) the Company has delivered to the Trustee an officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 10.2 Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.1, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Debt Securities.
ARTICLE XI
SUPPLEMENTAL INDENTURES
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SECTION 11.1 Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, 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 the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Outstanding
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Debt Security or Coupon of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Articles Four or Fifteen,
provided that any such action shall not adversely affect the interests of
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.1 and 3.1; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
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 the requirements
of Section 6.11; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the execution
of such supplemental indenture in any material respect; or
(11) to make any modifications, amendments or supplements to any
provision herein which modifications, amendments or supplements are
required pursuant to any amendment of the Trust Indenture Act of 1939
enacted, or any Rules promulgated thereunder, after the date hereof; or
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(12) to provide for adjustment of conversion rights pursuant to
Section 16.5.
SECTION 11.2 Supplemental Indentures With
Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby,
(1) change the Stated Maturity of the principal of, or installment of
interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions for
any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date) or for the
enforcement of the right of conversion thereof, or materially and adversely
affect the right to convert the Debt Securities in accordance herewith, or
limit the obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section 1203,
or limit the
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obligation of the Company to redeem an Affected Security as provided in
Section 13.2(b); or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.11, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 12.11, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.1(7).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
SECTION 11.3 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
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to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which adversely affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise in a material
way.
SECTION 11.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 11.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trustee Indenture Act as then in effect.
SECTION 11.6 Reference in Debt Securities to
Supplemental Indentures.
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt securities and Coupons of such series.
SECTION 11.7 Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 11.2, the Company
shall transmit, in the manner and to
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the extent provided in Section 1.5, to all Holders of any series of the Debt
Securities affected thereby, a notice setting forth in general terms the
substance of such supplemental indenture.
ARTICLE XII
COVENANTS
SECTION 12.1 Payment of Principal, Premium
and Interest.
The Company covenants and agrees for the benefit of each series of
Debt Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.1 with
respect to any series of Debt Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several Coupons for such interest installments as are evidenced thereby as
they severally mature. The interest, if any, due in respect of any temporary
Global Note or permanent Global Note, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such Debt
Security, shall be payable, subject to the conditions set forth in Section 12.2,
only upon presentation of such Debt Security to the Trustee for notation thereon
of the payment of such interest.
SECTION 12.2 Payment of Additional Amounts.
If specified pursuant to Section 3.1, the provisions of this Section
12.2 shall be applicable to Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay to the Holder of a Bearer Security or Coupon who is a United States
Alien such additional amounts as may be necessary so that every net payment on
such Bearer Security or Coupon, after withholding by the Company or the
designated paying agents for or on account of any present or future tax,
assessment of other governmental charge imposed upon or as a result of such
payment by the United States (or any political subdivision or taxing authority
thereof or therein), will not be less than the amount provided in such Bearer
Security
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or Coupon to be then due and payable. However, the Company will not be required
to make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge that would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or such fiduciary, settlor, or beneficiary
of, or a person holding a power over, such Holder, if such Holder is an
estate or a trust, or a member of shareholder of such Holder, if such
Holder is a partnership or corporation) and the United States, including,
without limitation, such Holder (or such fiduciary, settlor, beneficiary,
person holding power, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's past or present status as a personal holding company,
foreign personal holding company or private foundation or other tax-exempt
organization with respect to the United States or a corporation that
accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the Holder of a Debt Security
or Coupon for payment more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof was
duly provided for, whichever occurs later;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from a payment on a Debt Security or Coupon;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from a payment on a Debt Security or Coupon,
if such payment can be made without such withholding by at least one other
Paying Agent;
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(f) any tax, assessment or other governmental charge that would not
have been imposed but for a failure to comply with applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the
United States of the Holder or beneficial owner of a Debt Security or
Coupon if such compliance is required by statute or regulation of the
United States as a precondition to relief or exemption from such tax,
assessment or other governmental charge (including backup withholding);
(g) any tax, assessment or other governmental charge imposed on a
Holder that actually or constructively owns 10 percent or more of the
combined voting power of all classes of stock of the Company entitled to
vote or that is a controlled foreign corporation related to the Company
through stock ownership;
(h) any tax, assessment or other governmental charge imposed with
respect to any Registered Security by reason of failure of the Holder to
fulfill the statement requirement of Section 871(h) or Section 881(c) of
the Code or regulations thereunder or any successor provision; or (i) any
combination of items (a), (b), (c), (d), (e), (f), (g) or (h) hereof;
nor shall additional amounts be paid with respect to a payment on a Debt
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision thereof)
to be included in the income for tax purposes of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
that would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of such Debt
Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on any Debt
Security or payment with respect to any Coupon of any series, such mention shall
be deemed to include mention of the payment of additional amounts provided for
in the terms of such Debt Securities and this Section to the extent
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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.
SECTION 12.3 Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where, if applicable, the Debt
Securities may be presented for conversion and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
and State 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
Debt Securities of that series may be surrendered for exchange, where notices
and demands to or upon the Company in respect of the Debt Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the follow paragraph (and not otherwise), (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
Debt 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 12.2); provided, however, that if
the Debt Securities of that series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland, 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 Payment Agent for the Debt
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Debt
Securities of
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that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for registration of transfer, where
Debt Securities of that series may be surrendered for exchange and where notices
and demands to or upon the Company in respect of the Debt 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 such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee (in the case of Registered
Securities) and at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
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, that, if
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series pursuant to Section
12.2) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City and State of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium, interest or additional
amounts, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any
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manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 12.4 Money for Debt Securities; Payments
To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each such due date of the principal of (and premium, if any) or interest
on any of the Debt Securities of such series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by or on each due date of
the principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series 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;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Debt
securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon 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 transmitted in the manner and to the
extent provided by Section 1.5, notice that such money remains unclaimed and
that after a date specified therein, which shall not be less than 30 days from
the date of such notification any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 12.5 Corporate Existence.
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Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such existence, right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
SECTION 12.6 Purchase of Debt Securities by Company.
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
SECTION 12.7 Limitation on Disposition of Voting
Stock of, and Merger and Sale of Assets
by, Major Constituent Banks.
Except as provided in Article Ten, so long as any of the Debt
Securities shall be outstanding, the Company will not
(a) sell, assign, transfer or otherwise dispose of any shares of, or
securities convertible into or options, warrants or rights to subscribe for
or purchase shares of, Voting Stock of a Major Constituent Bank, and will
not permit a Major Constituent Bank to issue any shares of, or securities
convertible into or options, warrants or rights to subscribe for or
purchase shares of, such Voting Stock if, after giving effect to any such
transaction and to the issuance of the maximum number of shares of Voting
Stock of such Major Constituent Bank issuable upon the exercise of all such
convertible securities, options, warrants or rights, the Major Constituent
Bank would cease to be a Controlled Subsidiary, except as otherwise
provided below in this Section 12.7 or in Section 12.9.
(b) permit a Major Constituent Bank to
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(i) merge or consolidate with or into any other corporation, unless
the surviving corporation is, or upon consummation of the merger or
consolidation will become a Controlled Subsidiary, or
(ii) lease, sell or transfer all or substantially all of its
properties and assets to any corporation or other Person, except to a
Controlled Subsidiary or a Person that, upon such lease, sale or transfer,
will become a Controlled Subsidiary.
SECTION 12.8 Limitation On Creation of Liens.
So long as any of the Debt Securities shall be outstanding, the
Company will not create, assume, incur or suffer to be created, assumed or
incurred or to exist any pledge, encumbrance or lien, as security for
indebtedness for borrowed money, upon any shares of Voting Stock of a Major
Constituent Bank now or hereafter owned by the Company, directly or indirectly,
if, treating such pledge, encumbrance or lien as a transfer of the shares of
Voting Stock subject thereto to the secured party, the Major Constituent Bank
would not continue to be a Controlled Subsidiary.
SECTION 12.9 Exempted Transactions.
Notwithstanding Section 12.7(a), the Company may sell, assign,
transfer or otherwise dispose of any shares of, or securities convertible into,
or options, warrants or rights to subscribe for or purchase shares of, Voting
Stock of a Major Constituent Bank
(i) in compliance with an order of a court or regulatory authority of
competent jurisdiction or as a condition imposed by such court or authority
to the acquisition by the Company, directly or indirectly, of any other
corporation or entity; or
(ii) where the proceeds, if any, from any such sale, assignment or
disposition are within a reasonable period of time invested in any
Controlled Subsidiary (including any person which upon such investment
becomes a Controlled Subsidiary) engaged in a banking business or any other
business then legally permissible for bank holding companies
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pursuant to an understanding or agreement in principle reached at the time
of such sale, assignment or disposition.
SECTION 12.10 Officers' Certificate as to Default;
Notice of Default.
(a) The Company will deliver to the Trustee, on or before a date not
more than four months after the end of each fiscal year of the Company (which on
the date hereof is the calendar year) ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observation of any of the
terms, provisions and conditions of this Indenture, and, if the Company shall be
in default, specifying all such defaults and the nature thereof of which they
may have knowledge.
(b) The Company shall file with the Trustee written notice of the
occurrence of any default (as defined in Section 6.2) or Event of Default within
ten Business Days of the Company becoming aware of any such default or Event of
Default.
SECTION 12.11 Waiver of Certain Covenants.
The company may omit in any particular instance to comply with the
covenants set forth in Sections 12.7 to 12.10, inclusive, or, if so specified
pursuant to Section 3.1, any other covenant specified pursuant to Section 3.1
with respect to the Debt Securities of any series if, before the time for such
compliance, the Holders of at least a majority in principal amount of the
Outstanding Debt Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant, but no such waiver shall extend to or affect such covenant except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such covenant shall remain in full force and effect.
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES
SECTION 13.1 Applicability of Article.
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Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.1 for Debt Securities of any series)
in accordance with this Article.
SECTION 13.2 Tax Redemption; Special Tax
Redemption.
(a) Unless otherwise specified pursuant to Section 3.1, Debt
Securities of any series may be redeemed at the option of the Company in whole,
but not in part, on not more than 60 days' and not less than 30 days' notice, on
any Redemption Date at the Redemption Price specified pursuant to Section 3.1
(or at par if none specified), if the Company determines that (1) it has or will
become obligated to pay additional amounts on such Debt Securities pursuant to
Section 12.2 as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or any change in
official position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or after
the date on which any Person (including any Person acting as underwriter, broker
or dealer) agrees to purchase any of such Debt Securities pursuant to their
original issuance or (2) on or after such date, any action has been taken by any
taxing authority of, or any decision has been rendered in a court of competent
jurisdiction in, the United States or any political subdivision or taxing
authority thereof or therein, including any of those actions specified in (1)
above, whether or not such action was taken or decision was rendered with
respect to the Company, or any change, amendment, application or interpretation
shall be officially proposed which in any such case, in the written opinion to
the Company or independent legal counsel of recognized standing, will result in
a material probability that the Company will become obligated to pay additional
amounts with respect to Debt Securities pursuant to Section 12.2. Prior to the
publication of any notice of redemption pursuant to this Section 13.2(a), the
Company shall deliver to the Trustee (i) an Officers' Certificate stating that
the Company is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Company so to
redeem have occurred, and (ii)
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an Opinion of Counsel to such effect based on such statement of facts.
(b) Unless otherwise specified pursuant to Section 301, if the
Company shall determine that any payment made outside the United States by the
Company or any of its Paying Agents in respect of any Bearer Security which is
not a Floating Rate Security (an "Affected Security") would, under any present
or future laws or regulations of the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than such a requirement (i) that would not be applicable to a
payment made by the Company or any one of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of the beneficial
owner, or (ii) that can be satisfied by such custodian, nominee or other agent
certifying to the effect that the beneficial owner is a United States Alien;
provided that, in any case referred to in clause (i)(B) or (ii), payment by the
custodian, nominee or agent to the beneficial owner is not otherwise subject to
any such requirement), the Company shall elect either (x) (1) in the case of
Affected Securities that are Discount Securities, to permit the Holders of such
Affected Securities to elect, but only if done within 90 days after publication
of the Determination Notice as hereunder provided, to surrender the same for
redemption in whole but not in part at the Redemption Price, and (2) in the case
of any other Affected Securities, to redeem such Affected Securities, at the
Redemption Price, or (y) if the conditions of the next succeeding paragraph are
satisfied, to pay the additional amounts specified in such paragraph. The
Company shall make such determination as soon as practicable and publish prompt
notice thereof (the "Determination Notice"), stating the effective date of such
certification, documentation, information or reporting requirement, whether the
Company elects to redeem (or, in the case of Discount Securities, permit the
Holders to elect to surrender for redemption) the Affected Securities or to pay
the additional amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of the Affected Securities
must take place, as provided in the next succeeding sentence. If any Affected
Securities are to be redeemed pursuant to this paragraph, the
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redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Company shall specify by notice
to the Trustee at least 60 days before the Redemption Date. Notice of such
redemption of the Affected Securities shall be given to the Holders of Affected
Securities not more than 60 days nor less than 30 days prior to the Redemption
Date. Notwithstanding the foregoing, the Company shall not so redeem (or, in
the case of Discount Securities, permit the Holders to elect to surrender for
redemption) the Affected Securities if the Company shall subsequently determine,
not less than 30 days prior to the Redemption Date, that subsequent payments on
the Affected Securities would not be subject to any such certification,
documentation, information or other reporting requirement, in which case the
Company shall publish prompt notice of such subsequent determination and any
earlier redemption notice shall be revoked and of no further effect.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay such additional amounts as may be necessary so that
every net payment made outside the United States following the effective date of
such requirement by the Company or any of its Paying Agents in respect of any
Affected Security of which the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge which (i) would not be applicable in the circumstances
referred to in the parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of any such Affected
Security for payment more than 15 days after the date on which such payment
became due and payable or on which payment thereof was duly provided for,
whichever occurs later), will not be less than the amount provided in any such
Affected Security to be then due and payable. If the Company elects to pay
additional amounts pursuant to this paragraph, the Company shall have the right
to redeem (or, in the case of Discount Securities, permit the Holders to elect,
but only for the period of 30 days after the publication of notice of the
redemption as
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hereinafter provided, to surrender for redemption) the Affected Securities as a
whole, but not in part, at any time at the Redemption Price, subject to the
provisions of the last two sentences of the immediately preceding paragraph. If
the Company has made the determination described in the preceding paragraph with
respect to certification, documentation, information or other reporting
requirements applicable only to interest and subsequently makes a determination
in the manner and of the nature referred to in such preceding paragraph with
respect to such requirements applicable to principal, the Company will redeem
the Affected Securities in the manner and on the terms described in the
preceding paragraph unless the Company elects to have the provisions of this
paragraph apply rather than the provisions of the immediately preceding
paragraph. If in such circumstances the Affected Securities are to be redeemed,
the Company shall have no obligation to pay additional amounts pursuant to this
paragraph with respect to principal, but will be obligated to pay such
additional amounts with respect to interest accrued and unpaid to the date of
such redemption. If the Company elects to pay additional amounts pursuant to
this paragraph and the condition specified in the first sentence of this
paragraph should no longer be satisfied, then the Company shall redeem (or, in
the case of Discount Securities, permit the Holders to elect, but only for the
period of 30 days after publication of the notice of redemption as hereinafter
provided, to surrender for redemption) the Affected Securities in whole, but not
in part, at the Redemption Price subject to the provisions of the last two
sentences of the immediately preceding paragraph. If the Company elects to, or
is required to, redeem (or, in the case of Discount Securities, required to
permit Holders to elect to surrender for redemption) the Affected Securities
pursuant to the two immediately preceding sentences, it shall publish prompt
notice thereof. If the Affected Securities are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one year
after publication of the notice of redemption, as the Company shall specify by
notice to the Trustee at least 60 days prior to the Redemption Date. Any
redemption payments made by the Company pursuant to this paragraph shall be
subject to the continuing obligation of the Company to pay additional amounts
pursuant to this paragraph.
SECTION 13.3 Election to Redeem; Notice to
Trustee.
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The election of the Company to redeem (or in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.4, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
SECTION 13.4 Selection by Trustee of Debt
Securities to Be Redeemed.
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company
(other than as provided in Section 13.2),, the particular Debt Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Debt Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debt Securities of such series
or any integral multiple thereof) of the principal amount of Debt Securities of
such series in a denomination larger than the minimum authorized denomination
for Debt Securities of such series pursuant to Section 3.2 in the Currency in
which the Debt Securities of such series are denominated. The portions of the
principal amount of Debt Securities so selected for partial redemption shall be
equal to the minimum authorized denominations for Debt Securities of such series
pursuant to Section 3.2 in the Currency in which the Debt Securities of such
series are denominated or any integral multiple thereof, except as otherwise set
forth in the applicable form of Debt Securities. In any case where more than
one Registered Security of such series is registered in the same name, the
Trustee in its discretion may
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treat the aggregate principal amount so registered as if it were represented by
one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
If any Debt Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Debt Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Upon any redemption of less than all the Debt Securities of a series, for
purposes of selection for redemption, the Company and the Trustee may treat as
Outstanding Debt Securities surrendered for conversion during the period of 15
days next preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Debt Security authenticated and delivered during such period in
exchange for the unconverted portion of any Debt Security converted in part
during such period.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 13.5 Notice of Redemption.
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.5. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305(b) or otherwise,
the last date on which such exchanges may be made,
(9) that the redemption is for a sinking fund, if such is the case,
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(10) the Conversion Price then in effect and the date on which the
right to convert such Debt Security to be redeemed will expire, and
(11) the CUSIP number or numbers of the Debt Security to be redeemed.
SECTION 13.6 Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date for any
Debt Securities, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 12.4) an amount of money in the Currency or
Currencies in which such Debt Securities are denominated (except as provided
pursuant to Section 3.1) sufficient to pay the Redemption Price of such Debt
Securities or portions thereof which are to be redeemed on that date (other than
those theretofore surrendered for conversion into Common Stock). If any Debt
Security called for redemption is converted pursuant hereto, any money deposited
with the Trustee or any Paying Agent or so held in trust shall be paid to the
Company on the Company's request, or, if then held by the Company, shall be
discharged from such trust.
SECTION 13.7 Debt Securities Payable on
Redemption Date.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 3.1
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. In addition, such Debt Securities shall, if convertible by their
terms into Common Stock, cease from and after the date fixed for redemption
(unless an earlier date shall be specified in a Board Resolution, Officer's
Certificate or executed supplemental indenture referred to in Sections 2.1 and
3.1 by or pursuant to which the terms of the Debt Securities of such series were
established) to be convertible into Common Stock (unless the Company shall
default in the payment of the Redemption Price). Upon surrender of any such
Debt Security for
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redemption in accordance with said notice, such Debt Security 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 (except as otherwise provided in Section 12.3) and, unless
otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of Coupons for such interest, and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities which have a Stated Maturity on or prior to the Redemption
date for such Debt Securities shall be payable according to the terms of such
Debt Securities and the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security. In addition, such Debt Security shall, if
convertible by its terms into Common Stock, remain convertible into Common Stock
until the principal (and premium, if any) of such Debt Security shall have been
paid or duly provided for.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States 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. 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.
SECTION 13.8 Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.1 (in the case of Registered
Securities) and at an
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office of the Trustee or such other office or agency of the Company outside the
United States as is specified pursuant to Section 3.1 (in the case of Bearer
Securities) with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing, and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Debt Security without service charge, a new
Debt Security or Debt Securities of the same series of like tenor and form, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE XIV
SINKING FUNDS
SECTION 14.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.1 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
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SECTION 14.2 Satisfaction of Mandatory Sinking
Fund Payments with Debt Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value; PROVIDED that such Debt Securities shall not have been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 14.3 Redemption of Debt Securities for
Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.1) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section 14.2
and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next
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succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such certificate, the sinking fund payment due on the next succeeding
sinking fund payment date for such series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of the Debt Securities of
such series subject to a mandatory sinking fund payment without the right to
deliver or credit Debt Securities as provided in Section 14.2 and without the
right to make any optional sinking fund payment with respect to such series at
such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent segregated and held in trust as provided in
Section 12.4) for such series and, together with such payment (or such amount so
segregated) shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 12.4) on the
last sinking fund payment date with respect to Debt Securities of such series
and not held for the payment or redemption of particular Debt Securities of such
series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys if necessary, to be
deposited (or segregated) sufficient for the purpose to the payment of the
principal of the Debt Securities of such series at Maturity. The Company's
obligation to make a mandatory or optional sinking fund payment shall
automatically be reduced by an amount equal to the sinking fund redemption price
allocable to any Debt Securities or portions thereof called for redemption
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pursuant to the preceding paragraph on any sinking fund payment date and
converted into Common Stock; PROVIDED that, if the Trustee is not the Conversion
Agent for the Debt Securities, the Company or such Conversion Agent shall give
the Trustee written notice prior to the date fixed for redemption of the
principal amount of Securities or portions thereof so converted.
The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 13.4 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.5. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.7.
On or before each sinking fund payment date, the Company shall pay to
the Trustee (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 12.4) in cash a sum, in
the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.1 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of
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Default, be held as security for the payment of the Debt Securities and Coupons,
if any, of such series; provided, however, that in case such default or Event of
Default shall have been cured or waived as provided herein such moneys shall
thereafter be applied on the next sinking fund payment date for the Debt
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section.
ARTICLE XV
DEFEASANCE
SECTION 15.1 Applicability of Article.
If, pursuant to Section 3.1, provision is made for the defeasance of
Debt Securities of a series (other than Debt Securities that are convertible
into Common Stock), and if the Debt Securities of such series are Registered
Securities and denominated and payable only in Dollars (except as provided
pursuant to Section 3.1) then the provisions of this Article shall be applicable
except as otherwise specified pursuant to Section 3.1 for Debt Securities of
such series. Defeasance provisions, if any, for Debt Securities denominated in
a Foreign Currency or Currencies or for Bearer Securities may be specified
pursuant to Section 3.1.
SECTION 15.2 Defeasance Upon Deposit of Moneys or
U.S. Government obligations.
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Debt Securities of any series on the 91st day after the applicable conditions
set forth below have been satisfied or (b) the Company shall cease to be under
any obligation to comply with any term, provision or condition set forth in
Section 10.1, 12.7 and 12.8 with respect to Debt Securities of any series (and
if so specified pursuant to Section 3.1, any other restrictive covenant added
for the benefit of such series pursuant to Section 3.1) at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in
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trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Debt Securities of such series (i) money in
an amount, or (ii) U.S. Government Obligations (as defined below) which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including any mandatory sinking
fund payments) of and premium, if any, and interest on, the Outstanding
Debt Securities of such series on the dates such installments of interest
or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the Debt
Securities of that series to have a conflicting interest as defined in
Section 6.8 and for purposes of the Trust Indenture Act with respect to the
Debt Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise of
its option under this Section would not cause such Debt Securities to be
delisted;
(5) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 5.1(6) or (7) or event which with the giving of notice or lapse of
time, or both, would become an Event of Default under Section 5.1(6) or (7)
shall have
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occurred and be continuing on the 91st day after such date; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that the
Holders of the Debt Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance or Discharge.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.4, 3.5, 3.6, 12.3 and 15.3 and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the
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specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
SECTION 15.3 Deposited Moneys and U.S Government
Obligations to Be Held in Trust.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.2 in respect of Debt Securities of a series shall be held
in trust and applied by it, in accordance with the provisions of such Debt
Securities 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 Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 15.4 Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.2.
The provisions of the last paragraph of Section 12.4 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.2.
ARTICLE SIXTEEN
CONVERSION OF DEBT SECURITIES
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SECTION 16.1 Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are convertible into Common Stock as provided by
the terms of the Debt Securities of such series.
SECTION 16.2 Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Debt
Security to be converted shall surrender such Debt Security to the Conversion
Agent at any time during usual business hours at its office or agency maintained
for the purpose as provided in this Indenture, accompanied by a fully executed
written notice, in substantially the form set forth on the reverse of the Debt
Security, that the Holder elects to convert such Debt Security or a stated
portion thereof constituting a multiple of $1,000 in principal amount, and, if
such Debt Security is surrendered for conversion during the period between the
close of business on any record date for such Debt Security and the opening of
business on the related interest payment date and has not been called for
redemption on a redemption date within such period, accompanied also by payment
of an amount equal to the interest payable on such interest payment date on the
portion of the principal amount of the Debt Security being surrendered for
conversion. Such notice shall also state the name or names (and address) in
which the certificate or certificates for shares of Common Stock shall be issued
(or to whom payment in cash in lieu of fractional shares of Common Stock shall
be made). Debt Securities surrendered for conversion shall (if so required by
the Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Conversion Agent duly executed by, the Holder or his attorney
duly authorized in writing. As promptly as practicable after the receipt of
such notice and the surrender of such Debt Security as aforesaid, the Company
shall, subject to the provisions of Section 16.7, issue and deliver at such
office or agency to such Holder, or on his written order, a certificate or
certificates for the number of full shares of Common Stock issuable on
conversion of such Debt Security in accordance with the provisions of such Debt
Security and cash, as provided in Section 16.3, in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion. Such conversion
shall
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be at the Conversion Price in effect, and shall be deemed to have been effected,
immediately prior to the close of business on the date (herein called the "Date
of Conversion") on which such notice in proper form shall have been received by
the Conversion Agent and such Debt Security shall have been surrendered as
aforesaid, and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable, if any, upon such
conversion shall be deemed to have become on the Date of Conversion the holder
or holders of record of the shares represented thereby; provided, however, that
any such surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the Person or Persons in whose name or names
the certificate or certificates for such shares are to be issued, if any, as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the Conversion Price in effect at the close
of business on the date when such Debt Security shall have been so surrendered
with the conversion notice in proper form. In the case of conversion of a
portion, but less than all, of a Debt Security, the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder thereof, at the expense
of the Company, a Debt Security or Debt Securities in the aggregate principal
amount of the unconverted portion of the Debt Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Debt Security (or portion thereof) converted
or for dividends or distributions on any Common Stock issued upon conversion of
any Debt Security. The right, if any, of a Holder of any Debt Security to cause
the Company to redeem, purchase or repay such Debt Security shall terminate upon
receipt by the Company of any notice of conversion of such Debt Security.
SECTION 16.3. Fractional Interests.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Debt Securities. If more than one Debt Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon Conversion thereof shall be computed
on the basis of the aggregate principal amount of the Debt Securities so
surrendered. If any fraction of a share of Common Stock would, except for the
provisions of this Section 16.3, be
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issuable on the conversion of any Debt Security or Debt Securities, the Company
shall make payment in lieu thereof in cash equal to the value of such fraction
computed on the basis of the Last Sale Price of one share of Common Stock on the
most recent Trading Day prior to the Date of Conversion. "Last Sale Price" on
any Trading Day shall mean (i) the closing price regular way (or, if no closing
price is reported, the average of the bid and asked prices) as reported in the
listing of New York Stock Exchange Composite Transactions published in the Wall
Street Journal, or (ii) if on such Trading Day the Common Stock is not listed or
admitted to trading on such exchange, the closing price regular way (or, if no
closing price is reported the average of the bid and asked prices) on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, or (iii) if not listed or admitted to trading on any
national securities exchange on such Trading Day, then the average of the
closing bid and asked prices as reported through the National Association of
Securities Dealers, Inc. on its NASDAQ National Market System or NASDAQ System
or a similar organization if NASDAQ is no longer reporting such information, or
(iv) if the Common stock is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System or NASDAQ System on
such Trading Day, then the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose or (v) if not quoted
by any such organization on such Trading Day, the fair value of such Common
Stock on such Trading Day, as determined by the Board of Directors. The term
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on any of the above
mentioned exchanges or in such markets.
SECTION 16.4. Adjustment of Conversion Price.
The conversion price (herein called the "Conversion Price") for a
series of Debt Securities shall be as set forth in a Board Resolution, Officer's
Certificate or executed supplemental indenture referred to in Sections 2.1 and
3.1 by or pursuant to which the form and terms of the Debt Securities of such
series were established, and shall be subject to adjustment from time to time as
follows:
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(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2) subdivide
its outstanding shares of Common Stock into a greater number of shares, (3)
combine its outstanding shares of Common Stock into a smaller number of
shares or (4) issue by reclassification of its Common Stock any shares of
capital stock of the Company, the Conversion Price in effect immediately
prior to such action shall be adjusted so that the Holder of any Debt
Security thereafter surrendered for conversion shall be entitled to receive
the number of shares of Common Stock or other capital stock of the Company
which he would have owned immediately following such action had such Debt
Security been converted immediately prior thereto. An adjustment made
pursuant to this subsection (a) shall become effective immediately, except
as provided in subsection (e) below, after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification. If as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Debt Security thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes
of capital stock (including shares of Common Stock and other capital stock)
of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed with the Trustee)
shall determine the allocation of the adjusted Conversion Price between or
among shares of such classes of capital stock or shares of Common Stock and
other capital stock.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share (as determined pursuant to subsection (d) below) of the Common Stock
on the record date mentioned below, the Conversion Price shall be adjusted
to a price, computed to the nearest cent, so that the same shall equal the
price determined by multiplying:
(1) the Conversion Price in effect immediately prior to the
date of issuance of such rights or warrants by a fraction, of which
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130
(2) the numerator shall be (a) the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (b) the number of
shares which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number of
shares by the exercise price of such rights or warrants and dividing
the product so obtained by such current market price), and of which
(3) the denominator shall be (a) the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (b) the number of
additional shares of Common Stock which are so offered for
subscription or purchase.
Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders
of Common Stock, evidences of indebtedness, equity securities (including
equity interests in the Company's Subsidiaries) other than Common Stock, or
other assets (other than cash dividends paid out of retained earnings of
the Company), or shall distribute to substantially all holders of Common
Stock rights or warrants to subscribe for securities (other than those
referred to in subsection (b) above) then in each such case the Conversion
Price shall be adjusted so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the date
of such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in subsection (d)
below) of the Common Stock on the record date mentioned below less the then
fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such
fair market value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share
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131
of Common Stock, and of which the denominator shall be such current market
price per share of the Common Stock. Such adjustment shall become effective
immediately, except as provided in subsection (e) below, after the record
date for the determination of stockholders entitled to receive such
distribution. If after the Distribution Date (the "Distribution Date"), as
defined in the Rights Agreement, dated as of February 21, 1990, between the
Company and Barnett Banks Trust Company, N.A., as in effect on the date
hereof (the "Rights Agreement"), converting Holders of Debt Securities are
not entitled to receive the Rights, as defined in the Rights Agreement,
which would otherwise be attributable to the shares of Common Stock
received upon such conversion, then adjustment of the Conversion Price
shall be made under the preceding sentence as if the Rights were then being
distributed to the Holders of the Common Stock. If such an adjustment is
made and the Rights are later redeemed, invalidated or terminated, then a
corresponding adjustment shall be made to the Conversion Price, on an
equitable basis, to take account of such event. However, the Company may
elect to amend the provisions presently applicable to the Rights so that
each share of Common Stock issuable on conversion of the Debt Securities,
whether or not issued after the Distribution Date for such Rights, will be
accompanied by the Rights which would otherwise be attributable (but for
the date of conversion) to such share of Common Stock, in which event the
preceding two sentences will not apply.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices for the 30 consecutive
Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 16.4 shall require that an
adjustment be made immediately following a record date, the Company may
elect to defer the effectiveness of such adjustment (but in no event until
a date later than the effective time of the event giving rise to such
adjustment), in which case the Company shall, with respect to any Debt
Security converted after such record date and before such adjustment shall
have become effective,
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(i) defer paying any cash payment pursuant to Section 16.3 or issuing to
the Holder of such Debt Security the number of shares of Common Stock and
other capital stock of the Company issuable upon such conversion in excess
of the number of shares of Common Stock and other capital stock of the
Company issuable thereupon only on the basis of the Conversion Price prior
to adjustment and (ii), not later than five Business Days after such
adjustment shall have become effective, pay to such Holder the appropriate
cash payment pursuant to Section 16.3 and issue to such Holder the
additional shares of Common Stock and other capital stock of the Company
issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; PROVIDED, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and, provided, further,
that adjustment shall be required and made in accordance with the
provisions of this Article Sixteen (other than this subsection (f)) not
later than such time as may be required in order to preserve the tax-free
nature of a distribution to the holders of Debt Securities or Common Stock.
All calculations under this Article Sixteen shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent
an Officer's Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (ii) mail or cause to be mailed a
notice of such adjustment to each Holder of Debt Securities at his address
as the same appears on either the registry books of the Company or in the
filings described in Section 7.1.
Anything in this Section 16.4 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 16.4, as it in its discretion
shall
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133
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities,
or distribution of other assets (other than cash dividends) hereafter made
by the Company to its stockholders shall not be taxable.
SECTION 16.5. Continuation of Conversion Privilege in
Case of Merger, Consolidation or Sale
of Assets.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock; or (b) any sale or conveyance
of all or substantially all of the property or business of the Company as an
entirety, then the Company, or such successor or purchasing corporation, as the
case may be, shall, as a condition precedent to such consolidation, merger, sale
or conveyance, execute and deliver to the Trustee a supplemental indenture
(which shall conform to the Trust Indenture Act of 1939 as in force at the date
of the execution thereof) providing that the Holder of each convertible Debt
Security then outstanding shall have the right to convert such Debt Security
into the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such consolidation, merger, sale or conveyance
by a holder of the number of shares of Common Stock issuable upon conversion of
such Debt Security immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Sixteen. If, in the
case of any such consolidation, merger, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of
shares of Common Stock includes shares of stock or other securities and property
(including cash) of a corporation other than the successor or purchasing
corporation, as the case may be, in such consolidation, merger, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Debt Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.
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134
The provisions of this Section 16.5 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Debt Securities at his address as the same appears on
the registry books of the Company.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of Debt
Securities upon the conversion of their Debt Securities after any such
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 6.1 and 6.3, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officer's Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 16.6. Notice of Certain Events.
If:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash paid out of
retained earnings of the Company; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or the sale or conveyance of all or substantially all
the property or business of the Company; or
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135
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
When, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Debt Securities as provided in
Section 12.3, and shall cause to be mailed to each Holder of Debt Securities, at
his address as it shall appear on the registry books of the Company, at least 20
days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution or granting of rights, or if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution or rights are to be determined, or
(2) such reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up is expected to become effective and the
date, if any is to be fixed, as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding-up.
SECTION 16.7. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Debt Securities pursuant thereto; PROVIDED,
HOWEVER, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the Holder of the Debt Securities
to be converted (or payment of cash in lieu of fractional shares thereof to a
Person other than such Holder) and no such issue or delivery (or payment) shall
be made unless and until the Person requesting such issue or delivery (or
payment) has paid to the Company the amount of any such tax or has established,
to the satisfaction of the Company, that such tax has been paid. The Company
extends no protection with respect to any other taxes imposed in connection with
conversion of Debt Securities.
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136
SECTION 16.8. Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Debt Securities from time to time as such Debt Securities are
presented for conversion, provided, however, that nothing contained herein shall
be construed to preclude the Company from satisfying its obligations in respect
of the conversion of Debt Securities by delivery of repurchased shares of Common
Stock which are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law before such shares may
be validly issued or delivered upon conversion, then the Company covenants that
it will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; PROVIDED, HOWEVER, that nothing in
this Section 16.8 shall be deemed to affect in any way the obligations of the
Company to convert Debt Securities into Common Stock as provided in this Article
Sixteen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Debt Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 16.9. Disclaimer of Responsibility for Certain
Matters.
Neither the Trustee, the Conversion Agent nor any agent of either
shall at any time be under any duty or responsibility to any Holder of Debt
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Price,
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137
or with respect to the Officer's Certificate referred to in Section 16.4(g), or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee, the
Conversion Agent nor any agent of either shall be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property (including cash), which may at any time be issued
or delivered upon the conversion of any Debt Security; and neither the Trustee,
the Conversion Agent nor any agent of either makes any representation with
respect thereto. Neither the Trustee, the Conversion Agent nor any agent of
either shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Common Stock or stock certificates or
other securities or property (including cash) upon the surrender of any Debt
Security for the purpose of conversion or, subject to the Sections 6.1 and 6.3,
to comply with any of the covenants of the Company contained in this Article
Sixteen.
SECTION 16.10. Return of Funds Deposited for
Redemption of Converted Debt
Securities.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any Paying Agent for the purpose of paying
the principal of and interest and premium, if any, on any of the Debt Securities
and which shall not be required for such purposes because of the conversion of
such Debt Securities, as provided in this Article Sixteen, shall after such
conversion be repaid to the Company by the Trustee or such Paying Agent.
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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.
BARNETT BANKS, INC.
By:
-----------------------------------------
Title:
Attest:
- ---------------------------------
Seal
THE FIRST NATIONAL BANK OF CHICAGO
-------------------------------------------
as Trustee
By:
-----------------------------------------
Title:
Attest:
- ---------------------------------
Seal
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139
STATE OF__________________)
) ss:
COUNTY OF_________________)
On the ____________ day of February, 1995, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________ of Barnett Banks, Inc. one of the
corporations described in and which executed the foregoing instrument; that he
knows the 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
Notary Public
SEAL
STATE OF__________________)
) ss:
COUNTY OF_________________)
On the ____________ day of February, 1995, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________ of The First National Bank of Chicago,
one of the corporations described in and which executed the foregoing
instrument; that he knows the 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
SEAL
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR
OR CEDEL, S.A. BY OR ON BEHALF OF A PERSON ENTITLED
TO RECEIVE A DEFINITIVE BEARER SECURITY, TO EXCHANGE AN
INTEREST IN A TEMPORARY GLOBAL NOTE FOR AN INTEREST IN A
PERMANENT GLOBAL NOTE OR TO OBTAIN A PAYMENT OF INTEREST
PRIOR TO THE RECEIPT OF A DEFINITIVE BEARER SECURITY
OR AN INTEREST IN A PERMANENT GLOBAL NOTE]
CERTIFICATE
-----------------------
Barnett Banks, Inc.
[Insert title or sufficient description
of Debt Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below, the above-captioned Debt Securities held by you for our account (i) are
owned by persons that are not United States persons, (as defined below) (ii) are
owned by United States persons that (A) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such financial institutions on the date hereof (and in either case (A) or (B),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise the issuer or the issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by a United States or foreign financial institutions for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)). In addition, United States or foreign financial
institutions described in clause (iii) of the preceding sentence (whether or not
also described in clause (i) or (ii)) certify that they have not acquired the
Debt Securities for purposes of resale directly or indirectly to a United States
<PAGE>
2
person or to a person within the United States or its possessions.
As used herein, "United States Person" means any citizen or resident
of the United States, any corporation or partnership 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), and its possessions include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Debt
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification, you may assume that this certification
applies as of such date.
This certification excepts and does not relate to $_____________
principal amount of such interest in the above Debt Securities in respect of
which we are not able to certify and as to which we understand exchange and
delivery of definitive Debt Securities cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification or a copy thereof to any interested party in
such proceedings.
Dated: _________________________________, 19__
[To be dated no earlier than the
15th day before (i) the Exchange
<PAGE>
3
Date or (ii) the first Interest
Payment Date, if prior to the
Exchange Date.]
By:
---------------------------------------------
As, or as agent for, the beneficial owner(s)
of the Debt Securities to which this
certificate relates
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
OR CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF A
TEMPORARY GLOBAL NOTE FOR DEFINITIVE BEARER SECURITIES OR
FOR AN INTEREST IN A PERMANENT GLOBAL NOTE OR TO OBTAIN A
PAYMENT OF INTEREST PRIOR TO THE RECEIPT OF DEFINITIVE
BEARER SECURITIES OR AN INTEREST IN A PERMANENT GLOBAL NOTE]
CERTIFICATE
-----------------------
Barnett Banks, Inc.
[Insert title or sufficient description
of Debt Securities to be delivered]
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, as of the date hereof, $_______
principal amount of the above-captioned Debt Securities (i) is owned by persons
that are not United States persons (as defined below), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 165-12(c)(1)(v))
("financial institutions") purchasing for their own account or for resale, or
(b) acquired the Debt Securities through foreign branches of United States
financial institutions and who hold the Debt Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby 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), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)). In addition, United States or foreign financial
institutions described in clause (iii) of the preceding sentence (whether or not
also described in clause (i)
<PAGE>
2
or (ii) have certified that they have not acquired the Debt Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possession.
As used herein, "United States Person" means any citizen or resident
of the United States, any corporation or partnership 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), and its possessions include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify (i) we are not making available for exchange or
collection of any interest any portion of the Temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: ____________________, 19__
[To be dated no earlier than (i)
the Exchange Date or (ii) the first
Interest Payment Date, if prior to
the Exchange Date]
<PAGE>
3
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as
Operator of the Euro-clear System]
[CEDEL, S.A.]
By:
--------------------------------
<PAGE>
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF FEBRUARY __, 1995
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
Section 310 (a)(1) . . . . . . 609
(a)(2) . . . . . . 609
(a)(3) . . . . . . Not Applicable
(a)(4) . . . . . . Not Applicable
(b). . . . . . . . 608
. . . . . . . . 610
(c). . . . . . . . Not Applicable
Section 311 (a). . . . . . . . 613(a)
(b). . . . . . . . 613(b)
(b)(2) . . . . . . 703(a)(2)
. . . . . . . . 703(b)
Section 312 (a). . . . . . . . 701
. . . . . . . . 702(a)
(b). . . . . . . . 702(b)
(c). . . . . . . . 702(c)
Section 313 (a). . . . . . . . 703(a)
(b). . . . . . . . 703(b)
(c). . . . . . . . 703(a)
. . . . . . . . 703(c)
(d). . . . . . . . 703(d)
Section 314 . . . . . . . . 704
(b). . . . . . . . Not Applicable
(c)(1) . . . . . . 102
(c)(2) . . . . . . 102
(c)(3) . . . . . . Not Applicable
(d). . . . . . . . Not Applicable
(e). . . . . . . . 102
Section 315 (a). . . . . . . . 601(a)
. . . . . . . . 601(c)
(b). . . . . . . . 602
. . . . . . . . 703(a)(6)
(c). . . . . . . . 601(b)
(d). . . . . . . . 601(c)
(d) (1). . . . . . 601(a)
(d) (2). . . . . . 601(c)(2)
(d) (3). . . . . . 601(c)(3)
(e). . . . . . . . 514
Section 316 (a). . . . . . . . 101
(a)(1)(A). . . . . 502
. . . . . . . . 512
(a)(1)(B). . . . . 513
<PAGE>
2
(a)(2) . . . . . . Not Applicable
(b). . . . . . . . 508
Section 317 (a)(1) . . . . . . 503
(a)(2) . . . . . . 504
(b). . . . . . . . 1204
Section 318 (a). . . . . . . . 106
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
EXHIBIT (5)
Opinion of Mahoney Adams & Criser, P.A. as to the validity of the
Debt Securities and the Preferred Stock
<PAGE>
February 3, 1995
Barnett Banks, Inc.
50 North Laura Street
Jacksonville, Florida 32202
Re: Barnett Banks, Inc.: Registration Statement on Form S-3 relating to
$1,000,000,000 in Debt Securities, shares of Preferred Stock and
certain additional shares of Common Stock (as originally filed or as
may be amended from time to time, the "Registration Statement")
Ladies and Gentlemen:
We are furnishing this opinion in connection with the proposed offering of
an aggregate of $1,000,000,000 in (i) Debt Securities (the "Debt Securities") of
Barnett Banks, Inc. (the "Company"), (ii) Preferred Stock, par value $.10 (the
"Preferred Stock"), of the Company, and (iii) certain additional shares of
common stock, par value $2.00 (the "Common Stock"), of the Company which may be
authorized for issuance upon the exercise of certain conversion rights of the
Debt Securities and the Preferred Stock, covered by the Registration Statement
on Form S-3 filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
As counsel for the Company, we have examined the Registration Statement,
the form of Senior Indenture between the Company and The First National Bank of
Chicago, as Trustee (the "Senior Indenture"), filed as exhibit 4(f) to the
Registration Statement, the form of Subordinated Indenture between the Company
and Chemical Bank, as Trustee (the "Subordinated Indenture"), filed as exhibit
4(e) to the Registration Statement, and the form of Underwriting Agreements
incorporated by reference as exhibits to the
<PAGE>
Barnett Banks, Inc.
February 3, 1995
Page 2
__________________
Registration Statement, and are familiar with the proceedings taken by the
Company's Board of Directors with respect to them. We have also examined the
Articles of Incorporation, as amended, and the Bylaws, as amended, of the
Company, and such records, certificates and other documents of the Company as we
have considered necessary or appropriate for purposes of this opinion.
Based upon our examination of the above documents and our familiarity with
the proceedings, it is our opinion that:
1. The Company is duly organized and existing as a corporation in good
standing under the laws of the State of Florida.
2. The Senior Indenture and the Subordinated Indenture filed with the
Registration Statement have been duly and validly authorized by all necessary
action on the part of the Company and when duly executed by the Company and all
other parties thereto, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, except as such
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights generally and subject to a court's discretion to make
equitable remedies available.
3. The Debt Securities have been duly authorized by the Company and, when
duly executed, authenticated, and delivered against payment in accordance with
the terms of the Senior Indenture or the Subordinated Indenture, will constitute
valid and binding obligations of the Company enforceable in accordance with and
subject to their terms and the terms of the Senior Indenture or Subordinated
Indenture, except as such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors' rights generally and subject to a court's
discretion to make equitable remedies available. The Common Stock which may be
issued pursuant to the conversion of the Debt Securities will be duly authorized
and validly issued, and will be fully paid and nonassessable.
<PAGE>
Barnett Banks, Inc.
February 3, 1995
Page 3
__________________
4. The Company has authorized, issued and outstanding capitalization as
set forth in the Registration Statement.
5. Upon issuance and payment therefor in accordance with the terms of the
applicable Underwriting Agreement, the shares of Preferred Stock will have been
duly authorized and validly issued and will be fully paid and nonassessable, and
the Common Stock which may be issued pursuant to the conversion of such
Preferred Stock will be duly authorized and validly issued and will be fully
paid and nonassessable.
6. Under the laws of the State of Florida, in which the Company is
incorporated, as such laws are presently in effect, no personal liability
attaches to the holders of Preferred Stock or Common Stock for any debts of the
Company by reason of their being such holders.
<PAGE>
Barnett Banks, Inc.
February 3, 1995
Page 4
__________________
We hereby consent to the use of our name in the Registration Statement as
counsel who will pass upon the validity of the Debt Securities, the Preferred
Stock and the Common Stock for the Company and as having prepared this opinion,
and to the use of this opinion as an exhibit to the Registration Statement. We
further consent to the use of our name as counsel for the Company and to the
reference to this firm in the Prospectus which constitutes part of the
Registration Statement.
In giving this consent, we do not thereby admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules or regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
MAHONEY ADAMS & CRISER, P.A.
By:/s/ Halcyon E. Skinner
----------------------------
Halcyon E. Skinner
<PAGE>
[Letterhead]
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated January 11, 1995 incorporated by reference in Barnett Banks, Inc.
Form 10-K for the year ended December 31, 1994 and to all references to our
Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Jacksonville, Florida
February 3, 1995
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Registration Statements on Forms S-3 and S-8 of Barnett Banks, Inc.,
of our report dated January 14, 1993, appearing in this Form 10-K.
PRICE WATERHOUSE LLP
Orlando, Florida
February 3, 1995
<PAGE>
EXHIBIT (24)
Powers of Attorney
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Allen L. Lastinger, Jr.
---------------------------
Allen L. Lastinger, Jr.
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Carter H. Golembe
---------------------
Carter H. Golembe
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Charles W. Newman
---------------------
Charles W. Newman
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Frederick H. Schultz
------------------------
Frederick H. Schultz
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ James L. Broadhead
----------------------
James L. Broadhead
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ John A. Williams
--------------------
John A. Williams
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of January,
1995.
/s/ Patrick J. McCann
---------------------
Patrick J. McCann
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Stewart Turley
------------------
Stewart Turley
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Walter H. Alford
--------------------
Walter H. Alford
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of January,
1995.
/s/ Armando M. Codina
---------------------
Armando M. Codina
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Alvin R. Carpenter
----------------------
Alvin R. Carpenter
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Clarence V. McKee
---------------------
Clarence V. McKee
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Charles E. Rice
-------------------
Charles E. Rice
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of January,
1995.
/s/ Jean McArthur Davis
-----------------------
Jean McArthur Davis
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Jack B. Critchfield
-----------------------
Jack B. Critchfield
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Marshall M. Criser
----------------------
Marshall M. Criser
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Rita Bornstein
------------------
Rita Bornstein
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
W. Newman, Hinton F. Nobles, Jr., Patrick J. McCann and each or any of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign the
Corporation's Registration Statement on Form S-3 (or such other form as shall be
appropriate) and any and all amendments (including post-effective amendments)
thereto covering the issuance of up to $1,000,000,000 ($1 Billion) in Securities
of the Corporation and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to effectuate
the above purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of January,
1995.
/s/ Tom L. Rankin
-----------------
Tom L. Rankin
(SEAL)
<PAGE>
----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
--------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ______
-----------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-----------------------------------
BARNETT BANKS, INC.
(Exact name of obligor as specified in its charter)
FLORIDA 59-0560515
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
50 NORTH LAURA ST.
JACKSONVILLE, FLORIDA 32202
(Address of principal executive offices) (Zip Code)
-----------------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 1ST day of FEBRUARY, 1995.
CHEMICAL BANK
By /s/ F.J. Grippo
-------------------------------------
F.J. Grippo
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1994, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . $ 5,913
Interest-bearing balances . . . . . . . . . . . . . . 5,078
Securities: . . . . . . . . . . . . . . . . . . . . . . .
Held to maturity securities. . . . . . . . . . . . . . . . 6,544
Available for sale securities. . . . . . . . . . . . . . . 14,264
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . . . 1,811
Securities purchased under agreements to resell . . . 20
Loans and Lease financing receivables:
Loans and leases, net of unearned income $63,160
Less: Allowance for loan and lease losses 2,015
Less: Allocated transfer risk reserve . . . 113
Loans and leases, net of unearned income, -------
allowance, and reserve . . . . . . . . . . . . . . . 61,032
Assets held in trading accounts . . . . . . . . . . . . . 25,972
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . . . 1,394
Other real estate owned . . . . . . . . . . . . . . . . . 496
Investments in unconsolidated subsidiaries and
associated companies. . . . . . . . . . . . . . . . . 141
Customer's liability to this bank on acceptance
outstanding . . . . . . . . . . . . . . . . . . . . . 1,167
Intangible assets . . . . . . . . . . . . . . . . . . . . 555
Other assets . . . . . . . . . . . . . . . . . . . . . . . 5,812
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . $130,199
--------
--------
<PAGE>
<CAPTION>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . $ 45,811
Noninterest-bearing . . . . . . . . . . . . . $15,174
Interest-bearing. . . . . . . . . . . . . . . 30,637
In foreign offices, Edge and Agreement -------
subsidiaries, and IBF's . . . . . . . . . . . . . . . 28,701
Noninterest-bearing . . . . . . . . . . . . . $ 154
Interest-bearing. . . . . . . . . . . . . . . 28,547
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased . . . . . . . . . . . . . . . 10,457
Securities sold under agreements to repurchase . . . 1,187
Demand notes issued to the U.S. Treasury . . . . . . . . . 1,538
Trading Liabilities . . . . . . . . . . . . . . . . . . . 17,298
Other Borrowed money:
With original maturity of one year or less . . . . . 6,647
With original maturity of more than one year . . . . 1,035
Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . 24
Bank's liability on acceptances executed and outstanding . 1,175
Subordinated notes and debentures . . . . . . . . . . . . 3,500
Other Liabilities . . . . . . . . . . . . . . . . . . . . 5,332
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . 122,705
--------
<CAPTION>
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . . . . . . . 2,665
Net unrealized holding gains (Losses)
on available-for-sale securities . . . . . . . . . . . . . (290)
Cumulative foreign currency translation adjustments . . . (2)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . 7,494
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . . . . . . . $130,199
--------
--------
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-
named bank, do hereby declare that this Report of Condition
is true and correct to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We declare
that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
--------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------------------------
BARNETT BANKS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-0560515
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
*Exhibits 1, 2, 3, and 4 are herein incorporated by reference to
Exhibits bearing identical numbers in Item 12 of the Form T-1 of
The First National Bank of Chicago, filed as Exhibit 26 to the
Registration Statement on Form S-3 of The CIT Group Holdings, Inc.
filed with the Securities and Exchange Commission on February 16, 1993
(Registration No. 33-58418).
2
<PAGE>
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 1st day of February,
1995.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
BY /s/ Steven M. Wagner
--------------------------------------------
STEVEN M. WAGNER
VICE PRESIDENT
CORPORATE TRUST SERVICES DIVISION
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 1, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Barnett Banks, Inc.
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Steven M. Wagner
-------------------------------------
Steven M. Wagner
Vice President
Corporate Trust Services Division
4
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 6/30/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN --------- -
THOUSANDS RCFD BIL MIL THOU -------
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . 0081 2,999,432 1.a.
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . 0071 7,408,337 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . 1754 114,178 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D). . 1773 354,495 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold. . . . . . . . . . . . . . . . . . . . . . . 0276 3,997,507 3.a.
b. Securities purchased under agreements to resell . . . . . . . . 0277 756,008 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 14,441,302 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . RCFD 3123 336,826 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . . . 2125 14,104,476 4.d.
5. Assets held in trading accounts. . . . . . . . . . . . . . . . . . 3545 9,635,521 5.
6. Premises and fixed assets (including capitalized leases) . . . . . 2145 489,446 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . 2150 59,331 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2130 6,886 8.
9. Customers' liability to this bank on acceptances outstanding . . . 2155 445,848 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . 2143 131,253 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . 2160 1,283,273 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . 2170 41,785,991 12.
- --------------
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 6/30/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . RCON 2200 14,100,202 13.a.
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . RCON 6631 5,795,942 13.a.(1)
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . RCON 6636 8,304,260 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II). . . . . . . . . . . . . . . RCFN 2200 9,752,314 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . . . . RCFN 6631 459,474 13.b.(1)
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . RCFN 6636 9,292,840 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . . . . RCFD 0278 2,766,451 14.a.
b. Securities sold under agreements to repurchase. . . . . . . . . RCFD 0279 355,648 14.b.
15. a. Demand notes issued to the U.S. Treasury. . . . . . . . . . . . RCON 2840 101,744 15.a.
b. Trading Liabilities................................................ RCFD 3548 6,864,567 15.b.
16. Other borrowed money:
a. With original maturity of one year or less. . . . . . . . . . . RCFD 2332 1,955,477 16.a.
b. With original maturity of more than one year . . . . . . . . . RCFD 2333 488,023 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 273,578 17.
18. Bank's liability on acceptance executed and outstanding. . . . . . RCFD 2920 445,848 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . RCFD 2930 765,341 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . RCFD 2948 39,044,193 21.
22. Limited-Life preferred stock and related surplus . . . . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . RCFD 3839 2,254,940 25.
26. a. Undivided profits and capital reserves. . . . . . . . . . . . . RCFD 3632 287,009 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (38) 26.b.
27. Cumulative foreign currency translation adjustments. . . . . . . . RCFD 3284 (971) 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . RCFD 3210 2,741,798 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . RCFD 3300 41,785,991 29.
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external ---------------
auditors as of any date during 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 N/A
--------------- M.I.
<FN>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</TABLE>
7
