<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
_______________________
Date of Report (Date of Earliest Event Reported):
March 16, 1995
Barnett Banks, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 1-7901 59-0560515
- ------------- ---------------- ------------------
(State of (Commission file (IRS Employer
incorporation) number) Identification No.)
50 North Laura Street, Jacksonville, Florida 32202
- --------------------------------------------------------------------------------
(Address of principal executive office including zip code)
(904) 791-7720
-------------------------------
(Registrant's telephone number)
<PAGE>
ITEM 7 FINANCIAL STATEMENTS. PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits:
The exhibits listed in the accompanying Index to Exhibits relate to
the Registration Statement No. 33-57597, which also constitutes Post-
Effective Amendment No. 1 to Registration Statement No. 33-59246, on
Form S-3 of Barnett Banks, Inc. and are filed herewith for
incorporation by reference in such Registration Statement.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: March 22, 1995
BARNETT BANKS, INC.
By: /s/ Stephen Boyle
--------------------------------------
Name: Stephen Boyle
--------------------------------
Title: Manager of Financial Reporting
------------------------------
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT DESIGNATION PAGE
(1)(b) Distribution Agreement dated as of
March 16, 1995, among Barnett Banks,
Inc., CS First Boston Corporation,
Goldman, Sachs & Co., Lehman Brothers
Inc., Morgan Stanley & Co. Incorporated
and Salomon Brothers Inc
(4)(e) Indenture relating to Subordinated
Securities dated as of March 16, 1995
between Barnett Banks, Inc. and
Chemical Bank
(4)(f) Indenture relating to Senior
Securities dated as of March 16, 1995
between Barnett Banks, Inc. and The
First National Bank of Chicago
(4)(g) Form of Senior Floating Rate Medium
Term Note, Series D
(4)(h) Form of Senior Fixed Rate Medium Term
Note, Series D
(4)(i) Form of Subordinated Floating Rate
Medium Term Note, Series D
(4)(j) Form of Subordinated Fixed Rate Medium
Term Note, Series D
<PAGE>
$500,000,000
BARNETT BANKS, INC.
Medium-Term Notes, Series D
DISTRIBUTION AGREEMENT
March 16, 1995
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Lehman Brothers
Lehman Brothers Inc. (including
Lehman Government Securities Inc.)
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
1. INTRODUCTION. Barnett Banks, Inc., a Florida corporation (the
"Issuer"), confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents" (which terms shall include Lehman Government
Securities Inc., an affiliate of Lehman Brothers Inc.)) with respect to the
issue and sale from time to time by the Issuer of up to $500,000,000 (or the
U.S. dollar equivalent in certain specified foreign currencies or currency
units) aggregate principal amount of its medium-term notes,
<PAGE>
series D, registered under the registration statements referred to in Section
2(a) (any such medium-term notes, series D being hereinafter referred to as the
"Securities"). Securities which are subordinated in priority of payment to
Senior Indebtedness of the Issuer will be issued under an indenture dated as of
March 16, 1995 (as it may be supplemented or amended from time to time, the
"Subordinated Indenture"), between the Issuer and Chemical Bank, as trustee (the
"Subordinated Trustee"). Securities which are senior in priority of payment
will be issued under an indenture dated as of March 16, 1995 (as it may be
supplemented or amended from time to time, the "Senior Indenture") between the
Issuer and The First National Bank of Chicago, as trustee (the "Senior
Trustee"). The Subordinated Indenture and the Senior Indenture are collectively
referred to herein as the "Indenture". The Subordinated Trustee and the Senior
Trustee are collectively referred to as the "Trustee".
The Securities shall have the maturity ranges, annual interest rates
or interest rate formulas, if any, currencies or currency units, redemption or
sinking fund provisions and other terms set forth in the Prospectus referred to
in Section 2(a) as it may be amended or supplemented from time to time,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"). The Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants to, and agrees with, each Agent as follows:
(a) A registration statement (No. 33-57597), including a
prospectus, relating to debt securities of the Issuer, including the
Securities ("Registered Securities"), has been filed with the Securities
and Exchange Commission ("Commission") and has become effective. Pursuant
to Rule 429 under the Securities Act of 1933, as amended (the "Act"), the
prospectus also relates to debt securities of the Issuer registered
pursuant to registration statement No. 33-59246 filed with the Commission
which has also become effective. Such registration statements, as amended
as of the Closing Date (as defined in Section 3(e) hereof), are hereinafter
referred to as the "Registration Statement", and the prospectus included in
such Registration Statement, as supplemented as of the Closing Date with
respect to the offering of the Securities, including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to amending or supplementing
-2-
<PAGE>
the Prospectus shall be deemed to include the filing of materials
incorporated by reference in the Prospectus after the Closing Date and any
reference in this Agreement to any amendment or supplement to the
Prospectus shall be deemed to include any such materials incorporated by
reference in the Prospectus after the Closing Date.
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Act, the Trust Indenture Act
of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the Closing Date, the Registration Statement and the
Prospectus, and at each of the times of acceptance and of delivery referred
to in Section 6(a) hereof and at each of the times of amendment or
supplementing referred to in Section 6(b) hereof (the Closing Date and each
such time being herein sometimes referred to as a "Representation Date"),
the Registration Statement and the Prospectus as then amended or
supplemented, will conform in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Issuer by any
Agent specifically for use therein.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
or any amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a
-3-
<PAGE>
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the Issuer
and its consolidated subsidiaries as of the dates indicated and the results
of their operations and the changes in their consolidated cash flows for
the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein; and the pro forma financial information, and
the related notes thereto, if any, included or incorporated by reference in
the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and the
Exchange Act, as applicable.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Issuer and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and except
as set forth or contemplated in the Prospectus neither the Issuer nor any
of its subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Issuer and its
subsidiaries taken as a whole.
(f) The Issuer has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Issuer
and its subsidiaries taken as a whole.
-4-
<PAGE>
(g) Each of the Issuer's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Issuer
and its subsidiaries taken as a whole.
(h) Each of this Agreement and any other applicable Terms Agreement
has been duly authorized, executed and delivered by the Issuer and
constitutes the valid and binding agreement of the Issuer, except as rights
to indemnity and contribution hereunder or thereunder may be limited by
applicable law.
(i) The Securities have been duly authorized, and, when issued and
delivered in accordance with the Indenture and delivered to and paid for by
the purchasers thereof in accordance with this Agreement and any applicable
Terms Agreement, will have been duly executed, issued and delivered by the
Issuer and will constitute valid and binding obligations of the Issuer
entitled to the benefits provided by the Indenture; the Indenture has been
duly authorized, executed and delivered by the Issuer and qualified under
the Trust Indenture Act and constitutes a valid and binding instrument; and
the Indenture conforms, and the Securities of any particular issuance of
Securities will conform, to the descriptions thereof in the Prospectus as
amended or supplemented to relate to such issuance of Securities.
(j) Neither the Issuer nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Articles of Incorporation or Articles of Association, as
the case may be, or By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer or any of
its subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Issuer and its
subsidiaries taken as a whole or to the holders of the Securities; the
issue and sale of the Securities and the performance by the Issuer of all
of its obligations under the Securities, the Indenture, this Agreement and
-5-
<PAGE>
any Terms Agreement, and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer or any of its subsidiaries is a party or by
which the Issuer or any of its subsidiaries is bound or to which any of the
property or assets of the Issuer or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Articles
of Incorporation or the By-Laws of the Issuer or any applicable law or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Issuer, its subsidiaries or any
of their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Issuer of the other transactions
contemplated by this Agreement, any applicable Terms Agreement or the
Indenture, except such as have been, or will have been prior to the Closing
Date (as defined in Section 3(e) hereof), obtained under the Act or the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the offer and sale of the Securities.
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
the Issuer, threatened to which the Issuer or any of its subsidiaries is or
may be a party or to which any property of the Issuer or any of its
subsidiaries is or may be the subject which, if determined adversely to the
Issuer or any of its subsidiaries, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, prospects, management, consolidated financial position,
stockholders' equity or results of operations of the Issuer and its
subsidiaries taken as a whole, and, to the best of the Issuer's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required.
(l) Immediately after any sale of Securities by the Issuer hereunder
or under any applicable Terms
-6-
<PAGE>
Agreement, the aggregate amount of Securities which shall have been issued
and sold by the Issuer hereunder or under any Terms Agreement and of any
registered Securities (other than the Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of Registered Securities registered under the Registration
Statement.
3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPAL. (a) Subject to
the terms and conditions stated herein, the Issuer hereby appoints each of the
Agents as an agent of the Issuer for the purpose of soliciting or receiving
offers to purchase the Securities from the Issuer by others. Except as
otherwise provided herein, so long as this Agreement shall remain in effect with
respect to any Agent, the Issuer shall not, without the consent of any such
Agent, solicit or accept offers to purchase, or sell, Securities or any other
debt securities with a maturity at the time of original issuance of 9 months or
more ("Medium-Term Debt Securities") except pursuant to this Agreement and any
Terms Agreement, or except pursuant to a private placement not constituting a
public offering under the Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of Medium-Term Debt Securities. However, the Issuer
reserves the right (i) to sell, and may solicit and accept offers to purchase,
Securities and Medium-Term Debt Securities directly on its own behalf to
investors (subject to no fee or commission) at any time, (ii) upon five business
days' prior notice to, and with the prior consent of, each of the Agents, to
appoint other persons, partnerships or corporations ("Additional Agents") to act
as its agent to solicit offers for the purchase of Securities or Medium-Term
Debt Securities pursuant to this Agreement, provided that each Additional Agent
shall execute this Agreement and become a party hereto and thereafter the term
"Agent" as used in this Agreement shall mean the Agents and such Additional
Agents, and (iii) to accept a specific offer to purchase Securities or
Medium-Term Debt Securities solicited by an agent other than the Agents (each an
"Other Agent"), without obtaining the prior consent of any of the Agents,
provided that (x) the Issuer shall give each of the Agents notice of its
decision to accept such an offer to purchase Securities or Medium-Term Debt
Securities in advance of such acceptance, and (y) any Other Agent shall agree to
be bound by and subject to the terms and conditions of this Agreement binding on
the Agents (including the commission schedule set forth on Exhibit B).
On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Agent hereby
severally and not jointly agrees, as agent of the Issuer, to use reasonable best
efforts when requested by the Issuer to solicit offers to
-7-
<PAGE>
purchase the Securities upon the terms and conditions set forth in the
Prospectus, as from time to time amended or supplemented.
Upon receipt of notice from the Issuer as contemplated by Section 4(b)
hereof, each Agent shall suspend its solicitations of purchases of Notes until
such time as the Issuer shall have furnished it with an amendment or supplement
to the Registration Statement or the Prospectus, as the case may be,
contemplated by Section 4(b) and shall have advised such Agent that such
solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. Upon receipt of a least one Business Day's prior
notice from the Issuer, the Agents will forthwith suspend solicitation of offers
to purchase Securities from the Issuer until such time as the Issuer has advised
the Agents that such solicitation may be resumed. For the purpose of the
foregoing sentence, "Business Day" shall mean any day which is not a Saturday or
a Sunday and which in New York City is not a day on which banking institutions
are generally authorized or obligated by law to close.
The Agents are authorized to solicit offers to purchase Securities
only in a minimum aggregate amount of $1,000 and only in fully registered form
in denominations of $1,000 and integral multiples of $1,000 in excess thereof
or, in the case of Securities denominated in a foreign currency or currency
unit, or with respect to which an index is used to determine the amount of
payments of principal and any premium and interest, in each case as may be
designated by the Issuer at the time of offering thereof, in the denominations
indicated in the applicable Pricing Supplement, and at a purchase price which,
unless otherwise specified in the applicable Pricing Supplement, shall be equal
to 100% of the principal amount thereof. Each Agent shall communicate to the
Issuer, orally or in writing, each reasonable offer to purchase Securities
received by it as Agent. The Issuer shall have the sole right to accept offers
to purchase the Securities and may reject any such offer, in whole or in part.
Each Agent shall have the right, in its discretion reasonably exercised, without
notice to the Issuer, to reject any offer to purchase Securities received by it
and which it considers unacceptable, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold, by the
Issuer until such
-8-
<PAGE>
Security shall have been delivered to the purchaser thereof against payment by
such purchaser.
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless such Agent shall
otherwise agree) a Terms Agreement which will provide for the sale of such
Securities to, and the purchase thereof by, such Agent (each a "Terms
Agreement"). A Terms Agreement will be substantially in the form of Exhibit A
hereto but may take the form of an exchange of any standard form of written
telecommunication between an Agent and the Issuer and may also specify certain
provisions relating to the reoffering of such Securities by such Agent. The
commitment of any Agent to purchase Securities as principal, whether pursuant to
any Terms Agreement or otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Issuer herein contained and shall
be subject to the terms and conditions herein and in the applicable Terms
Agreement set forth. Each agreement by an Agent to purchase Securities as
principal (pursuant to a Terms Agreement or otherwise) shall specify the
principal amount of Securities to be purchased by such Agent pursuant thereto,
the price to be paid to the Issuer for such Securities, the maturity date of
such Securities, the interest rate or interest rate basis, if any, applicable to
such Securities, any other terms of such Securities, the time and date and place
of delivery of and payment for such Securities, any provisions relating to
rights of, and default by, underwriters acting together with such Agent in the
reoffering of Securities, and shall also specify any requirements for opinions
of counsel, accountants' letters and officers' certificates pursuant to Section
5 hereof. Unless otherwise specified in a Terms Agreement, the procedural
details relating to the issue and delivery of Securities purchased by an Agent
as principal and the payment therefore shall be as set forth in the Procedures
(as hereinafter defined).
(c) At the time of delivery of, and payment for, any Securities sold
by the Issuer as a result of a solicitation made by, or offer to purchase
received by, an Agent, the Issuer agrees to pay such Agent a commission in
accordance with the schedule set forth in Exhibit B hereto. The Issuer agrees
that each Agent that purchases Securities as principal for resale shall receive
such compensation, in the form of a discount or otherwise, as shall be indicated
in the applicable confirmation or Terms Agreement, as the case may be, or, if no
compensation is indicated therein, a commission in accordance with Exhibit B
hereto. The Issuer may also sell Securities to an Agent as principal for its
own account at discounts to be agreed upon at the time of sale. Such Securities
may be sold to investors and other purchasers at prevailing market prices, or
prices related thereto at the time of such resale or otherwise, as determined by
the Agent.
-9-
<PAGE>
In addition, the Agents may offer the Securities they have purchased as
principal to other dealers. The Agents may sell Securities to any dealer at a
discount and, unless otherwise specified in the applicable confirmation or Terms
Agreement, such discount allowed to any dealer will not be in excess of the
discount to be received by such Agent from the Issuer.
(d) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Agents and the
Issuer. The initial Procedures, which are set forth in Exhibit C hereto, shall
remain in effect until changed by agreement among the Issuer and the Agents.
Each Agent and the Issuer agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Issuer will furnish to the Trustee a copy of the Procedures as
from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York 10017, not later than 10:00 A.M., New York City time, on the
date of this Agreement or at such later time as may be mutually agreed by the
Issuer and the Agents, which in no event shall be later than the time at which
the Agents commence solicitation of purchases of Securities hereunder, such time
and date being herein called the "Closing Date".
4. CERTAIN AGREEMENTS OF THE ISSUER. The Issuer agrees with the
Agents that it will furnish to Simpson Thacher & Bartlett, counsel for the
Agents, one signed copy of the Registration Statement, including all exhibits,
in the form it became effective and of all amendments thereto and that, in
connection with each offering of Securities:
(a) The Issuer will advise each Agent promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will
afford the Agents a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Issuer will also advise each Agent of the
filing and effectiveness of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(b) If, at any time when (i) a prospectus relating to the Securities
is required to be delivered under the Act and (ii) no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(b)
hereof or this Section 4(b) shall be in effect (any such time referred to
in clause (i) and any time when either any
-10-
<PAGE>
Agent shall own any Securities with the intention of reselling them or the
Issuer has accepted an offer to purchase Securities but the related
settlement has not occurred being referred to herein as a "Marketing
Period"), any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Issuer will
promptly notify each Agent to suspend solicitation of purchases of the
Securities; and if the Issuer shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise each
Agent by telephone (with confirmation in writing) and will promptly prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Notwithstanding the foregoing, if, at the time such event
occurs or it becomes necessary to amend the Prospectus to comply with the
Act, any Agent shall own any of the Securities with the intention of
reselling them, or the Issuer has accepted an offer to purchase Securities
but the related settlement has not occurred, the Issuer, subject to the
provisions of subsection (a) of this Section 4, will promptly prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither the Agents' consent to, nor their delivery of, any amendment or
supplement referred to in this Section 4(b) shall constitute a waiver of
any of the conditions set forth in Section 5 hereof or of any of the
Issuer's obligations set forth in Section 6 hereof.
(c) The Issuer will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act. In addition, on or prior to the date on which the Issuer
makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the
Issuer proposes to describe, in a document filed pursuant to the Exchange
Act, the Issuer will furnish the information contained or to be contained
in such announcement to each Agent, confirmed in writing and, subject to
the provisions of subsections (a) and (b) of this Section 4, will cause the
Prospectus to be amended or supplemented to reflect the information
contained in such announcement. The Issuer also will furnish each Agent
with copies of all other press releases or announcements to the general
public. The Issuer will immediately notify each Agent
-11-
<PAGE>
of any downgrading in the rating of the Securities or any other debt
securities of the Issuer, or any proposal to downgrade the rating of the
Securities or any other debt securities of the Issuer (including any
surveillance or review regarding the same), by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of the Securities or any debt
securities of the Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating), as soon as the Issuer learns of such
downgrading, proposal to downgrade or public announcement.
(d) As soon as practicable, but in any event not later than 16 months
after the date of each acceptance by the Issuer of an offer to purchase
Securities hereunder, the Issuer will make generally available to its
security holders an earnings statement covering a period of at least 12
months beginning after the latest of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
acceptance and (iii) the date of the Issuer's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such acceptance,
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Issuer will furnish to each Agent copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents (including any Pricing
Supplement), in each case as soon as available and in such quantities as
are reasonably requested.
(f) The Issuer will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Agents reasonably request and will
continue such qualifications in effect so long as required for the
distribution.
(g) So long as any Securities are outstanding, the Issuer will
furnish to the Agents, (i) as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year,
(ii) as soon as available, a copy of each report or definitive proxy
statement of the Issuer filed with the Commission
-12-
<PAGE>
under the Exchange Act or mailed to stockholders, and (iii) from time to
time, such other information concerning the Issuer as the Agents may
reasonably request.
(h) The Issuer will whether or not any sale of Securities is
consummated pay all expenses incident to the performance of its obligations
under this Agreement and will reimburse each Agent for any expenses
(including fees and disbursements of counsel) incurred by it in connection
with qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as such
Agent may designate and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the
Securities, for filing fees, if any, of the National Association of
Securities Dealers, Inc. relating to the Securities, for expenses incurred
by each Agent in distributing the Prospectus and all supplements thereto
(including any Pricing Supplement), any preliminary prospectuses and any
preliminary prospectus supplements to such Agent, for costs incurred by
each Agent and consented to by the Issuer in advertising any offering of
Securities and for each Agent's expenses (including the reasonable fees and
disbursements of counsel to the Agents) incurred in connection with the
establishment or maintenance of the program contemplated by this Agreement
and/or otherwise in connection with the activities of the Agents under this
Agreement.
(i) Between the date of a Terms Agreement and the date of delivery of
such Securities, the Issuer will not offer or sell, or enter into any
agreement to sell, any of its debt securities of similar tenor to the
Securities the subject of such Terms Agreement in the United States, other
than sales of Securities, borrowings under the Issuer's revolving credit
agreements and lines of credit, the private placement of securities and
issuances of its commercial paper.
5. CONDITIONS OF OBLIGATIONS. The obligation of each Agent, as
agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer herein, to the accuracy, on each
such date, of the statements of the Issuer's officers made pursuant to the
provisions hereof, to the performance, on or prior to each such date, by the
Issuer of its obligations hereunder, and to each of the following additional
conditions precedent:
-13-
<PAGE>
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be, shall
have been filed with the Commission in accordance with the Rules and
Regulations and no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Issuer or any Agent, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such solicitation,
as the case may be, shall contain any untrue statement of fact which, in
the opinion of any Agent after consultation with the Issuer, is material or
omits to state a fact which, in the opinion of any Agent after consultation
with the Issuer, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Issuer or its subsidiaries which, in the judgment of
such Agent after consultation with the Issuer, materially impairs the
investment quality of the Securities, (ii) any downgrading in the rating of
the Issuer's debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act)
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Issuer
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any suspension or limitation of trading in securities generally on
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, or
any suspension of trading of any securities of or guaranteed by the Issuer
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by Federal, New York or Florida authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of such
Agent, the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with
solicitations of purchases of, or sales of, Securities.
-14-
<PAGE>
(d) At the Closing Date, and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Agent purchasing such Securities (the
"Purchasing Agent"), as the case may be, shall have received an opinion,
dated the Closing Date, or such date of delivery, as the case may be, of
Mahoney Adams & Criser, P.A., counsel for the Issuer, to the effect that:
(i) the Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Florida,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Issuer is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification;
(ii) each of the Issuer's significant subsidiaries (as defined
in Regulation S-X of the Rules and Regulations, hereinafter
"significant subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where
the failure to be so qualified and in good standing would not have a
material adverse effect on the Issuer and its subsidiaries taken as a
whole; and all of the issued shares of capital stock of each
significant subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except in the case of
foreign subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Issuer, free and clear of all liens,
encumbrances, equities or claims;
(iii) other than as set forth or contemplated in the
Prospectus, to the best knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened required to be
described in the Prospectus which are not described as required nor
are there any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or
-15-
<PAGE>
to be filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(iv) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Issuer, and, assuming
due authorization, execution and delivery by the Agents or Agent, as
the case may be, are valid and binding agreements except as rights to
indemnity and contribution hereunder and thereunder may be limited by
applicable law and except as enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and by general equity principles;
(v) the Securities have been duly authorized and, when executed
and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by any purchaser of Securities sold through
an Agent as agent or any Agent as principal pursuant to any Terms
Agreement or other agreement, will constitute valid and binding
obligations of the Issuer entitled to the benefits provided by the
Indenture except as enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and by general equity principles, it being understood that such
counsel may (a) assume that at the time of the issuance, sale and
delivery of each Security the authorization of such series will not
have been modified or rescinded and there will not have occurred any
change in law affecting the validity, legally binding character or
enforceability of such Security, (b) assume that neither the issuance,
sale and delivery of any Security, nor any of the terms of such
Security, nor compliance by the Issuer with such terms, will violate
any applicable law, any agreement or instrument then binding upon the
Issuer or any restriction imposed by any court or governmental body
having jurisdiction over the Issuer, and (c) state that as of the date
of such opinion a judgment for money in an action based on Securities
denominated in foreign currencies or currency units in a Federal or
State court in the United States ordinarily would be enforced in the
United States only in United States dollars, and that the date
-16-
<PAGE>
used to determine the rate of conversion of the foreign currency or
currency unit in which a particular Security is denominated into
United States dollars will depend upon various factors, including
which court renders the judgment;
(vi) the Indenture has been duly authorized, executed and
delivered by the Issuer and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding instrument of
the Issuer except as enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and by general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) neither the Issuer nor any of its significant subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Articles of Incorporation or
Articles of Association, as the case may be, or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Issuer or any of such
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the Issuer
and its subsidiaries taken as a whole or to the holders of the
Securities; the issue and sale of the Securities and the performance
by the Issuer of its obligations under the Securities, the Indenture,
this Agreement and any applicable Terms Agreement or other agreement
pursuant to which an Agent purchases Securities as principal and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which the Issuer or any of its
significant subsidiaries is a party or by which the Issuer or any of
its significant subsidiaries is bound or to which any of the property
or assets of the Issuer or any of its significant subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the
Issuer or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or
-17-
<PAGE>
body having jurisdiction over the Issuer, its significant subsidiaries
or any of their respective properties;
(viii) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement, any applicable Terms Agreement or other agreement pursuant
to which an Agent purchases Securities as principal, or the Indenture,
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Act and the Trust
Indenture Act and as may be required under state securities or Blue
Sky laws in connection with the offers and sales of the Securities
from the Issuer and with purchases of Securities;
(ix) the statements made in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar
as they purport to constitute a summary of the terms of documents
referred to therein, constitute accurate summaries of the terms of
such documents in all material respects (subject to the insertion in
the Securities of the maturity dates, interest rates and other similar
terms thereof, which are to be described in supplements to the
Prospectus).
(x) the registration statement relating to the Registered
Securities and the Registration Statement, as of their respective
effective dates, and the Prospectus, as of the Closing Date, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel has no
reason to believe that such registration statement as of its effective
date, the Registration Statement or the Prospectus, as of the Closing
Date, or any such amendment or supplement as of its date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the descriptions in the
Registration Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; it
being understood that such counsel need express no opinion as to the
financial
-18-
<PAGE>
statements or other financial data contained in the Registration
Statement or the Prospectus;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of the laws other than the laws of the United
States and the State of Florida, to the extent such counsel deems proper
and to the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the Agents'
counsel) of other counsel reasonably acceptable to the Agents' counsel,
familiar with the applicable laws; and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers
of the Issuer and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Issuer. The opinion of such counsel for
the Issuer shall state that the opinion of any such other counsel is in
form satisfactory to such counsel and, in such counsel's opinion, the
Agents and they are justified in relying thereon. With respect to the
matters to be covered in subparagraphs (d)(ix) and (d)(x) above, counsel
may state their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and review and discussion of the contents
thereof (including the documents incorporated by reference therein) but is
without independent check or verification except as specified.
(e) At the Closing Date, and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Purchasing Agent, as the case may be, shall
have received a certificate, dated the Closing Date, or such date of
delivery, as the case may be, of the President or any Vice President and
the Treasurer, a principal financial or accounting officer of the Issuer in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties of
the Issuer in this Agreement are true and correct, (ii) the Issuer has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (iii) no
stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose have
been instituted or, to the best knowledge of the Issuer, are contemplated
by the Commission, and (iv) subsequent to the date of the most recent
financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change in the financial
-19-
<PAGE>
position or results of operations of the Issuer and its subsidiaries,
except as set forth in or contemplated by the Prospectus or as described in
such certificate. In the case of each such certificate delivered pursuant
to a Terms Agreement, the statements contained in such certificate relating
to the Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as amended or
supplemented as of the date of the Issuer's acceptance of the offer to
purchase such Securities and as of the time of delivery of such Securities.
(f) At the Closing Date, and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Purchasing Agent, as the case may be, shall
have received a letter, dated the Closing Date, or such date of delivery,
as the case may be, of Arthur Andersen LLP, confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect
that:
(i) In their opinion, the financial statements and schedules
examined by them and included in the prospectus contained in the
Registration Statement comply in form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) They have made a review of any unaudited financial
statements included in the Prospectus in accordance with the standards
established by the American Institute of Certified Public Accountants,
as indicated in their report or reports attached to such letter;
(iii) On the basis of the review referred to in (ii) above
and a reading of the latest available interim financial statements of
the Issuer, the reading of the minutes of the meetings of the
stockholders, directors and committees of the Board of Directors of
the Issuer, inquiries of officials of the Issuer who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and
-20-
<PAGE>
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements from
which it was derived or was not determined on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, or such date of
delivery, as the case may be, there was any change in the capital
stock or any increase in short-term indebtedness or long-term
debt of the Issuer and consolidated subsidiaries or, at the date
of the latest available balance sheet read by such accountants,
there was any decrease in consolidated shareholder's equity, as
compared with amounts shown on the latest balance sheet included
in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year, in consolidated net interest income, in the
consolidated income before income taxes, in the total or per
share amounts of net income;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms
Agreement, the statements contained in such letter relating to the
Registration Statement or the Prospectus shall relate to the Registration
Statement or
-21-
<PAGE>
the Prospectus, as the case may be, as amended or supplemented as of the
date of the Issuer's acceptance of the offer to purchase such Securities
and as of the time of delivery of such Securities.
(g) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Purchasing Agent, as the case may be, shall
have received from Simpson Thacher & Bartlett, counsel for the Agents, such
opinion or opinions, dated the Closing Date, or such date of delivery, as
the case may be, with respect to the incorporation of the Issuer, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as they may require, and the Issuer shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Simpson Thacher & Bartlett may rely as to the incorporation of the Issuer
and all other matters governed by Florida law upon the opinion of Mahoney
Adams & Criser, P.A. referred to above.
The Issuer will furnish the Agents with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. ADDITIONAL COVENANTS OF THE ISSUER. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the time
of such acceptance and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the
purchaser of the Securities relating to such acceptance as though made at
and as of each such time, it being understood that such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented at each such time. Each such acceptance by the
Issuer of an offer for the purchase of Securities shall be deemed to
constitute an additional representation, warranty and agreement by the
Issuer that, as of the settlement date for the sale of such Securities,
after giving effect to the issuance of such Securities, of any other
Securities to be issued on or prior to such settlement date and of any
other Registered Securities to be issued and sold by the Issuer on or prior
to such settlement date, the aggregate amount of Registered Securities
(including any Securities) which have been issued and sold by the Issuer
will not exceed the amount of Registered
-22-
<PAGE>
Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), the Issuer
shall, (A) concurrently with such amendment or supplement, if such
amendment or supplement shall occur at a Marketing Period, or (B)
immediately at the next Marketing Period if such amendment or supplement
shall not occur at a Marketing Period, furnish the Agents with a
certificate, dated the date of delivery thereof, of the President or any
Vice President and a principal financial or accounting officer of the
Issuer, in form satisfactory to the Agents, to the effect that the
statements contained in the certificate covering the matters set forth in
Section 5(e) hereof which was last furnished to the Agents are true and
correct at the time of such amendment or supplement, as though made at and
as of such time or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(e); PROVIDED, HOWEVER,
that any certificate furnished under this Section 6(b) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at the
time of delivery of such certificate and, in the case of the matters set
forth in clause (ii) of Section 5(e) hereof, to the time of delivery of
such certificate.
(c) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented, the Issuer shall, (A) concurrently if such Representation
Date shall occur at a Marketing Period, or (B) immediately at the next
Marketing Period if such Representation Date shall not occur at a Marketing
Period, furnish the Agents with a written opinion or opinions, dated the
date of such Representation Date, of counsel for the Issuer, in form
satisfactory to the Agents, to the effect set forth in Section 5(d) hereof;
PROVIDED, HOWEVER, that to the extent appropriate such opinion or opinions
may reconfirm matters set forth in a prior opinion delivered under Section
5(d) or this Section 6(c); PROVIDED FURTHER, HOWEVER, that any opinion or
opinions furnished under this Section 6(c) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date and shall state that the Securities sold in the
relevant Applicable Period have been duly executed, authenticated, issued
and delivered and constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms and conform to the
description thereof contained in the Prospectus as amended or supplemented
at the relevant settlement
-23-
<PAGE>
date or dates for the sale of such Securities. For the purpose of this
Section 6(c), "Applicable Period" shall mean with respect to any opinion
delivered on a Representation Date the period commencing on the date of the
most recent prior opinion delivered under Section 5(d) or this Section 6(c)
and ending on such Representation Date.
(d) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer shall
cause Arthur Andersen LLP, (A) concurrently if such Representation Date
shall occur at a Marketing Period, or (B) immediately at the next Marketing
Period if such Representation Date shall not occur at a Marketing Period,
to furnish the Agents with a letter, addressed jointly to the Issuer and
the Agents and dated the date of such Representation Date, in form and
substance satisfactory to the Agents, to the effect set forth in Section
5(f) hereof; PROVIDED, HOWEVER, that to the extent appropriate such letter
may reconfirm matters set forth in a prior letter delivered pursuant to
Section 5(f) or this Section 6(d); PROVIDED FURTHER, HOWEVER, that any
letter furnished under this Section 6(d) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Issuer.
(e) On each settlement date for the sale of Securities, the Issuer
shall, if requested by an Agent, furnish such Agent with a written opinion
of counsel of the Issuer, dated the date of delivery thereof, in form
satisfactory to such Agent, to the effect set forth in clauses (i), (v) and
(vi) of Section 5(d) hereof; PROVIDED, HOWEVER, that any opinion furnished
under this Section 6(e) shall relate to the Prospectus as amended or
supplemented at such settlement date and shall state that the Securities
being sold by the Issuer on such settlement date, when delivered against
payment therefor as contemplated by this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuer enforceable in accordance with
their terms, subject only to the exceptions as to enforcement set forth in
clause (vi) of Section 5(d) hereof, and will conform to the description
thereof contained in the Prospectus as amended or supplemented at such
settlement date.
(f) The Issuer agrees that any obligation of a person who has agreed
to purchase Securities to make
-24-
<PAGE>
payment for and take delivery of such Securities shall be subject to (i)
the accuracy, on the related settlement date fixed pursuant to the
Procedures, of the Issuer's representation and warranty deemed to be made
to the Agents pursuant to the last sentence of subsection (a) of this
Section 6, and (ii) the satisfaction, on such settlement date, of each of
the conditions set forth in Sections 5(a), (b) and (c), it being understood
that under no circumstance shall any Agent have any duty or obligation to
exercise the judgment permitted under Section 5(b) or (c) on behalf of any
such person.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Issuer will indemnify
and hold harmless each Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Agent for any legal or other expenses
reasonably incurred by such Agent in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Issuer will not be liable to such Agent in any such
case to the extent that any such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of such documents
in reliance upon and in conformity with written information furnished to the
Issuer by such Agent specifically for use therein.
(b) Each Agent will indemnify and hold harmless the Issuer against
any losses, claims, damages or liabilities to which the Issuer may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was
-25-
<PAGE>
made in reliance upon and in conformity with written information furnished to
the Issuer by such Agent specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Issuer in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
contrary, (ii) the indemnifying party has failed within a reasonable time to
retain counsel reasonably satisfactory to the indemnified party or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all indemnified parties, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Agents and control persons of the Agents shall be
designated in writing by CS First Boston Corporation or, if CS First Boston
Corporation is not an indemnified party, by the Agents that are indemnified
parties and any such separate firm for the Issuer, its directors, its officers
who sign the Registration Statement and control persons of the Issuer shall be
designated in writing by the Issuer. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as
-26-
<PAGE>
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer on the one hand and any Agent on the other from the offering pursuant
to this Agreement of the Securities which are the subject of the action or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Issuer on the one hand and any Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and any Agent on the
other shall be deemed to be in the same proportions as the total net proceeds
from the offering pursuant to this Agreement of the Securities which are the
subject of the action (before deducting expenses) received by the Issuer bear to
the total commissions (before deducting expenses) received by such Agent from
the offering of such Securities pursuant to this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer or such
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
which are the subject of the action and which were distributed to the public
through it pursuant to this Agreement or upon resale of Securities purchased by
it from
-27-
<PAGE>
the Issuer exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each Agent in this subsection (d) to contribute are several, in
the same proportion which the amount of the Securities which are the subject of
the action and which were distributed to the public through such Agent pursuant
to this Agreement bears to the total amount of such Securities distributed to
the public through each of the Agents pursuant to this Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls each
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Issuer, to each officer of the Issuer who has signed the
Registration Statement and to each person, if any, who controls the Issuer
within the meaning of the Act.
(f) The Issuer will not, without the prior written consent of each
Agent, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Agent or any person
who controls such Agent within the meaning of Section 15 of the Act is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such Agent and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding.
8. STATUS OF EACH AGENT. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than any obligation to purchase Securities pursuant
to Section 3 hereof), each Agent is acting individually and not jointly and is
acting solely as agent for the Issuer and not as principal. Each Agent will
make reasonable efforts to assist the Issuer in obtaining performance by each
purchaser whose offer to purchase Securities from the Issuer has been solicited
by such Agent and accepted by the Issuer, but such Agent shall have no liability
to the Issuer in the event any such purchase is not consummated for any reason.
he Issuer shall default on its obligations to deliver Securities to a purchaser
whose offer it has accepted, the Issuer (i)
-28-
<PAGE>
shall hold the Agents harmless against any loss, claim or damage arising from or
as a result of such default by the Issuer, and (ii) in particular, shall pay to
the Agents any commission to which they would be entitled in connection with
such sale.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Agents set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Agent, the Issuer or any of their respective representatives, officers or
directors or any controlling person and will survive delivery of and payment for
the Securities. If this Agreement is terminated pursuant to Section 10 hereof
or for any other reason or if for any reason the sale of Securities described in
a confirmation or Terms Agreement referred to in Section 3 hereof by the Issuer
to the Agent is not consummated, the Issuer shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(h) and the
obligations of the Issuer under Sections 4(d) and 4(g) and the respective
obligations of the Issuer and the Agents pursuant to Section 7 shall remain in
effect. In addition, if any such termination shall occur either (i) at a time
when any Agent shall own any of the Securities with the intention of reselling
them, or (ii) after the Issuer has accepted an offer to purchase Securities and
prior to the related settlement, the obligations of the Issuer under the second
sentence of Section 4(b), under Sections 4(a), 4(c), 4(e), 4(f) and 4(i) and, in
the case of a termination occurring as described in (ii) above, under Sections
3(c), 6(a), 6(e) and 6(f) and under the last sentence of Section 8, shall also
remain in effect.
10. TERMINATION. This Agreement may be terminated for any reason at
any time by the Issuer as to any Agent or by any such Agent insofar as this
Agreement relates to such Agent upon the giving of one day's written notice of
such termination to the other parties hereto. Any settlement with respect to
Securities placed by an Agent on an agency basis occurring after termination of
this Agreement shall be made in accordance with the Procedures and each Agent
agrees, if requested by the Issuer, to take the steps therein provided to be
taken by such Agent in connection with such settlement.
11. SALES OF SECURITIES DENOMINATED IN A FOREIGN CURRENCY AND INDEXED
SECURITIES. If at any time the Issuer and any of the Agents shall determine to
issue and sell Securities denominated in a currency or currency unit other than
U.S. Dollars, which other currency may include a composite currency, or with
respect to which an index is used to determine the amounts of payments of
principal and any
-29-
<PAGE>
premium and interest, the Issuer and any such Agent shall execute and deliver a
supplemental agreement to this Agreement (an "Amendment") in the form attached
hereto as Exhibit D. An Amendment shall establish, as appropriate, additions to
and modifications of the terms of this Agreement (including the Procedures),
which additions and modifications shall apply to the sales, whether offered on
an agency or principal basis, of such Securities covered thereby.
12. NOTICES. Except as otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication to the following addresses or facsimile transmission numbers.
Agents:
CS First Boston Corporation
Park Avenue Plaza
New York, New York 10055
Attention: Short and Medium Term Finance Department
Fax No. (212) 318-1498
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Credit Control - Medium Term notes
Fax No. (212) 902-3000
Lehman Brothers
Lehman Brothers Inc. (including Lehman Government
Securities Inc.)
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Attention: Medium Term Note Department
Fax No. (212) 528-7035
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Attention: Manager, Continuously Offered
Products
with a copy to:
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas, 28th Floor
New York, New York 10020
Attention: Peter Cooper
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
-30-
<PAGE>
Issuer:
Barnett Banks, Inc.
50 North Laura Street
Jacksonville, Florida 32202
Attention: Chief Financial Officer
Fax No. (904) 791-7493
In the case of any party hereto, notice shall be deemed to have been
duly given if so mailed or transmitted to such other address, facsimile
transmission number or person as such party shall specify to each other party by
a notice given in accordance with the provisions of this Section 12. Any such
notice shall take effect at the time of receipt.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(f), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
14. GOVERNING LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
-31-
<PAGE>
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
BARNETT BANKS, INC.
By_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
CS FIRST BOSTON CORPORATION LEHMAN BROTHERS INC.
By________________________________ By____________________________
Name: Name:
Title: Title:
MORGAN STANLEY & CO. INCORPORATED GOLDMAN, SACHS & CO.
By_______________________________ ______________________________
Name: (Goldman, Sachs & Co.)
Title:
SALOMON BROTHERS INC
By_______________________________
Name:
Title:
-32-
<PAGE>
Exhibit A
BARNETT BANKS, INC.
MEDIUM TERM NOTES, SERIES D
TERMS AGREEMENT
___________, 199_
Barnett Banks, Inc.
50 North Laura Street
Jacksonville, Florida 32202
Attention: ____________________
Re: Distribution Agreement dated
as of March 16, 1995 (the
"DISTRIBUTION AGREEMENT")
The undersigned agrees to purchase your Medium-Term Notes, Series ___
having the following terms:
Specified Currency:_______________________________
Principal Amount:_________________________________
Original Issue Date:______________________________
Settlement Date, Time and Place:__________________
Maturity Date:____________________________________
Purchase Price: _____% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Price to Public:_______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Redemption Date (Dates): , commencing
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
<PAGE>
Initial accrual period OID:
Original Yield to Maturity
[(For Fixed Rate Notes)
Interest Rate:_______________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule: ]
(1)[(For Floating Rate Notes)
Initial Interest Rate:____________________
Interest Rate Basis (CD, Commercial Paper, Federal Funds, LIBOR,
Prime, Treasury, CMT, 11th District Cost of
Funds, J.J. Kenny):___________________
1/ Index Maturity (30, 60, 90 days, 6 months, 1 year,
other):______________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): _________________
Interest Payment Period (monthly, quarterly,
semiannually, annually):_________________
Spread: ____________________ points (+/-)
Spread Multiplier: ___________%
Maximum Interest Rate:________%
Minimum Interest Rate:________%
Initial Interest Reset Date:__________________
Interest Reset Dates:__________________
Interest Determination Dates:__________
Interest Payment Dates:________________
Calculation Agent: ]
- --------------------
1/ See Prospectus Supplement dated March 16, 1995 for explanation of terms.
A-2
<PAGE>
Other terms of Securities:
Provisions relating to underwriter
default, if any:
The provisions of Sections 2, 3(b) and 3(d) and 4 through 7, 9,
12, 13 and 14 of the Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed
to have the same force and effect as if set forth in full herein.
This Agreement is subject to termination in our absolute
discretion on the terms incorporated by reference herein. If this
Agreement is so terminated, the provisions set forth in Section 9 of
the Distribution Agreement shall survive for the purposes of this
Agreement.
[The certificate referred to in Section 5(e) of the Distribution
Agreement, the opinion referred to in Section 5(d) of the Distribution
Agreement and the accountants' letters referred to in Section 5(f) of
the Distribution Agreement will be required.]
[Agent]
By:______________________
(Title)
Accepted:
BARNETT BANKS, INC.
By:_________________________
(Title)
A-3
<PAGE>
EXHIBIT B
The Issuer agrees to pay the relevant Agent a commission equal to the
following percentage of the principal amount of Securities sold to purchasers
solicited by such Agent:
Commission
(percentage of
aggregate principal
amount of Securities
RANGE OF MATURITIES sold)
From 9 months to less than 1 year. . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . .150%
From 18 months to less than 2 years. . . . . . . . . . .200%
From 2 years to less than 3 years. . . . . . . . . . . .250%
From 3 years to less than 4 years. . . . . . . . . . . .350%
From 4 years to less than 5 years. . . . . . . . . . . .450%
From 5 years to less than 6 years. . . . . . . . . . . .500%
From 6 years to less than 7 years. . . . . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . . . . .600%
From 10 years to less than 15 years. . . . . . . . . . .625%
From 15 years to less than 20 years. . . . . . . . . . .700%
From 20 years to 30 years. . . . . . . . . . . . . . . .750%
Greater than 30 years. . . . . . . . . . . . . . . . . To be negotiated at
the time of
issuance
<PAGE>
Exhibit C
BARNETT BANKS, INC.
MEDIUM-TERM NOTES, SERIES D
ADMINISTRATIVE PROCEDURES
_______________________________
The Medium-Term Notes, Series D (the "Notes"), are to be offered on a
continuous basis by Barnett Banks, Inc. (the "Company"). Each of CS First
Boston Corporation, Goldman, Sachs & Co., Lehman Brothers Inc. (including Lehman
Government Securities Inc.), Morgan Stanley & Co. Incorporated and Salomon
Brothers Inc (each an "Agent") has agreed to solicit offers to purchase the
Notes in registered form. The Notes are being sold pursuant to a Distribution
Agreement dated as of March 16, 1995 (the "Agreement") between the Company and
the Agents. In the Agreement, each Agent has agreed to use reasonable efforts
to solicit purchases of the Notes. Each Agent, as principal, may purchase Notes
for its own account and, if such Agent so elects, the Company and such Agent
will enter into a Terms Agreement, as contemplated by the Agreement.
Notes which are subordinated in priority of payment will be issued
pursuant to an Indenture, dated as of March __, 1995 (the "Subordinated
Indenture"), between the Issuer and Chemical Bank, as Trustee (the "Subordinated
Trustee"). Notes which are senior in priority of payment will be issued
pursuant to an Indenture, dated as of March 16, 1995 (the "Senior Indenture")
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Senior Trustee"). The Subordinated Indenture and the Senior Indenture are
hereinafter collectively referred to as the "Indenture". The Subordinated
Trustee and the Senior Trustee are hereinafter collectively referred to as the
"Trustee". The Trustees will be the Registrar, Calculation Agent,
Authenticating Agent and Paying Agent for the Notes, and will perform the duties
specified herein. Notes will bear interest at a fixed rate (the "Fixed Rate
Notes"), which may be zero in the case of certain original issue discount notes
(the "OID Notes"), or at floating rates (the "Floating Rate Notes"). Fixed Rate
Notes may pay a level amount in respect of both interest and principal amortized
over the life of the Notes ("Amortizing Notes"). Each Note will be represented
by either a Global Security (as defined below) delivered to the Trustee, as
agent for The Depository Trust Company ("DTC"), and recorded in the book-entry
system maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a "Certificated Note").
Except in limited circumstances, an owner of a Book-Entry Note will not be
entitled to receive a Certificated Note.
<PAGE>
Book-Entry Notes, which may be payable solely in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture or the Notes shall be used herein
as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, each of the Senior
Trustee and the Subordinated Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
respective obligations under Letters of Representation from the Company and the
Senior Trustee to DTC and the Company and the Subordinated Trustee to DTC, each
dated as of the date hereof (the "Letters of Representation"), and Medium-Term
Note Certificate Agreements between the Senior Trustee and DTC and the
Subordinated Trustee and DTC, dated as of May 26, 1989 and December 2, 1988,
respectively, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to U.S
$150,000,000 principal amount of all such Notes that have
the same Maturity Date, redemption or repayment provisions,
Interest Payment Dates, Original Issue Date, original issue
discount provisions (if any), and, in the case of Fixed Rate
Notes, Interest Rate, modified payment upon acceleration (if
any), amortization schedule (if any) or, in the case of
Floating Rate Notes, Initial Interest Rate, Interest Payment
Dates, Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate (if any)
and, in each case, any other relevant terms (collectively
"Terms"). Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. Each
Global Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security (or
any portion thereof), its original issuance date and (ii)
with respect to any Global Security (or any portion thereof)
issued subsequently
C-2
<PAGE>
upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most recent
Interest Payment Date to which interest has been paid or
duly provided for on the predecessor Global Security or
Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes may
only be denominated and payable in U.S. dollars. No Global
Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note.
Identification To the extent required, the Company has arranged
with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation
of a series of approximately 900 CUSIP numbers (including
tranche numbers) for assignment to the Global Securities
representing the Book-Entry Notes. The Company has obtained
from the CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and has delivered to the Trustee
and DTC the written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure
"B". DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Trustee has assigned to Global
Securities. At any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, the
Trustee shall so advise the Company and, if it deems
necessary, the Company will reserve additional CUSIP numbers
for assignment to Global Securities representing Book-Entry
Notes. Upon obtaining such additional CUSIP numbers, the
Company shall deliver a list of such additional CUSIP number
to the Trustee and DTC.
Registration: Each Global Security will be registered in the name of Cede
& Co., as nominee for DTC, on the security register
maintained under the Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect participants in DTC
designated by such owner) will designate one or more
participants in DTC with respect to such Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC and
DTC will record in
C-3
<PAGE>
book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
beneficial owner in such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service Bureau
at any time a written notice of consolidation specifying (i)
the CUSIP numbers of two or more Outstanding Global
Securities that represent Book-Entry Notes having the same
Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization notice to
the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will
exchange such Global Securities for a single Global Security
bearing the new CUSIP number and a new Interest Accrual
Date, and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Securities to
be exchanged exceed $150,000,000 in aggregate principal
amount, one Global Security will be authenticated and
C-4
<PAGE>
issued to represent each $150,000,000, principal amount of
the exchanged Global Security and an additional Global
Security will be authenticated and issued to represent any
remaining principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months or
more from its date of issue.
Notice of The Trustee will give notice to DTC prior to each
Redemption and Redemption Date or Repayment Date (as specified
Repayment Dates: in the Note), if any, at the time and in the manner set
forth in the Letter of Representations.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or an integral multiple of $1,000 in excess thereof.
Global Securities will be denominated in principal amounts
not in excess of $150,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each $150,000,000
principal amount of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note or Notes.
In such a case, each of the Global Securities representing
such Book-Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: GENERAL. Interest on each Book-Entry Note will accrue from
the Interest Accrual Date of the Global Security
representing such Note. Unless otherwise specified therein,
each payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest Payment Date.
Interest payable at the maturity or upon redemption or
repayment of a Book-Entry Note will be payable to the person
to whom the principal of such Note is payable. Standard &
Poor's Corporation will use the information received in the
pending deposit message described under Settlement Procedure
"C" below in order to include the amount of any interest
payable and certain other information regarding the related
Global Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
C-5
<PAGE>
RECORD DATES. The Record Date with respect to any Interest
Payment Date shall be the date fifteen calendar days
immediately preceding such Interest Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes, other than
Amortizing Notes, will be made semiannually on June 1 and
December 1 of each year, and at maturity or upon any earlier
redemption or repayment and principal and interest payments
on Book-Entry Amortizing Notes will be made semiannually on
June 1 and December 1 of each year or quarterly on March 1,
June 1, September 1 and December 1 of each year, and at
maturity (or any redemption or repayment date); PROVIDED,
HOWEVER, that in the case of a Fixed Rate Book-Entry Note
issued between a Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date. If any Interest Payment Date for a
Fixed Rate Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such payment
for the period from and after such Interest Payment Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will be
made on Floating Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest will be
payable, in the case of Floating Rate Book-Entry Notes with
a daily, weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March,
June, September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating Rate
Book-Entry Notes with a quarterly Interest Reset Date, on
the third Wednesday of March, June, September and December
of each year; in the case of Floating Rate Book-Entry Notes
with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and in the case of Floating Rate
Book-Entry Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; PROVIDED
C-6
<PAGE>
HOWEVER, that if an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is not a
Business Day with respect to such Floating Rate Book-Entry
Notes, such Interest Payment Date will be the next
succeeding Business Day with respect to such Floating Rate
Book-Entry Notes, except in the case of a LIBOR Note if such
Business Day is in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding
Business Day; and PROVIDED, FURTHER, that in the case of a
Floating Rate Book-Entry Note issued between a Record Date
and the related Interest Payment Date (a "Book-Entry Gap
Note"), the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date, and in such case, notwithstanding the fact that an
Interest Reset Date may occur prior to such Interest Payment
Date, the Initial Interest Rate shall remain in effect until
the first Interest Reset Date occurring on or subsequent to
such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. On the first
Business Day of March, June, September and December of each
year, the Trustee will deliver to the Company and DTC a
written list of Record Dates and Interest Payment Dates that
will occur with respect to Book-Entry Notes during the
six-month period beginning on such first Business Day.
Promptly after each date upon which interest is determined
for Floating Rate Notes issued in book-entry form, the
Calculation Agent will notify the Company, the Trustee and
Standard & Poor's Corporation of the interest rates
determined on such dates.
Calculation of FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Interest: Book-Entry Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve
thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in the
form of such Notes. Interest on Floating Rate Book-Entry
Notes will be calculated on the basis of actual days elapsed
and a year of 360 days, except that, in the case of Treasury
Rate Notes and CMT Rate Notes, interest will be calculated
on
C-7
<PAGE>
the basis of the actual number of days in the year.
Payments of PAYMENTS OF INTEREST ONLY. Promptly after
Principal and each Record Date, the Trustee will
Interest: deliver to the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each
Global Security other than an Amortizing Note on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with maturity or any earlier
redemption or repayment date) and the total of such amounts.
DTC will confirm the amount payable on each such Global
Security on such Interest Payment Date by reference to the
daily bond reports published by Standard & Poor's
Corporation. In case of Amortizing Notes, the Trustee will
provide separate written notice to the Company and to DTC
prior to each Interest Payment Date at the time and in the
manner set forth in the Letter of Representation. The
Company will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (and,
in the case of an Amortizing Note, principal and interest)
(other than at maturity), and the Trustee will pay such
amount to DTC at the times and in the manner set forth below
under "Manner of Payment."
PAYMENTS AT MATURITY OR UPON REDEMPTION OR REPAYMENT. On or
about the first Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of principal
and interest to be paid on each Global Security other than
an Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following month. The
Company and DTC will confirm the amounts of such principal
and interest payments with respect to each such Global
Security on or about the fifth Business Day preceding the
Maturity Date or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Trustee will
provide separate written notice to the Company and to DTC
prior to the Maturity Date and any redemption or repayment
date, as the case may be, at the times and in the manner set
forth in the Letter of Representations. The Company will
pay to the Trustee, as the paying agent, the principal
amount of such Global Security, together with interest due
at such Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the
C-8
<PAGE>
times and in the manner set forth below under "Manner of
Payment."
PAYMENTS NOT ON BUSINESS DAYS. If any Interest Payment Date
or the Maturity Date or redemption or repayment date of a
Global Security representing Fixed Rate Book-Entry Notes is
not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after
such Interest Payment Date, Maturity Date or redemption or
repayment date, as the case may be. If any Interest Payment
Date or the Maturity Date or redemption or repayment date of
a Global Security representing a Floating Rate Book-Entry
Note would otherwise fall on a day that is not a Business
Day, the payment due on such day shall be made on the next
succeeding day that is a Business Day with respect to such
Notes with the same effect as if such Business Day were the
Interest Payment Date, Maturity Date or date of redemption
or repayment, as the case may be, except that, in the case
of Book-Entry LIBOR Notes, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date
or redemption or repayment date shall be the immediately
preceding day that is a Business Day with respect to such
Book-Entry LIBOR Notes. Promptly after payment to DTC of
the principal and interest due on the Maturity Date or
redemption or repayment date of such Global Security, the
Trustee will cancel such Global Security in accordance with
the terms of the Indenture and deliver it to the Company
with a certificate of cancellation. On the first Business
Day of each month, the Trustee will deliver to the Company a
written statement indicating the total principal amount of
outstanding Book-Entry Notes as of the immediately preceding
Business Day.
MANNER OF PAYMENT. The total amount of any principal and
interest due on Global Securities on any Interest Payment
Date or at maturity or upon redemption or repayment shall be
paid by the Company to the Trustee in funds available for
immediate use by the Trustee as of 9:30 a.m. (New York City
time) on such date. The Company will make such payment on
such Global Securities by wire transfer to the Trustee or by
instructing the Trustee to withdraw funds from an account
maintained by the Company at
C-9
<PAGE>
the Trustee. The Company will confirm such instructions in
writing to the Trustee. Prior to 10 a.m. (New York City
time), or as soon as possible thereafter, on each Maturity
Date or redemption or repayment date or, if either such date
is not a Business Day, as soon as possible thereafter,
following receipt of such funds from the Company the Trustee
will pay by separate wire transfer (using Fedwire message
entry instructions in a form previously specified by DTC) to
an account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal (together
with interest thereon) due on Global Securities on any
Maturity Date or redemption or repayment date. On each
Interest Payment Date or, if any such date is not a Business
Day, as soon as possible thereafter, interest payments and,
in the case of Amortizing Notes, interest and principal
payments shall be made to DTC in same day funds in
accordance with existing arrangements between the Trustee
and DTC. Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use to
the respective Participants in whose names the Book-Entry
Notes represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any responsibility or
liability for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments directly to the
beneficial owner of such Note.
Preparation of If any order to purchase a Book-Entry
Pricing Note is accepted by or on behalf of Company,
Supplement: the Company will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and will
arrange to file such Pricing Supplement by EDGAR with the
Commission in accordance with the applicable paragraph of
Rule 424(b) under the Act and will deliver the number of
copies of such Pricing
C-10
<PAGE>
Supplement to the relevant Agent as such Agent shall request
by the close of business on the following Business Day. The
relevant Agent will cause such Pricing Supplement to be
delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agent receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to which
they are attached (other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the fifth
Business Day following such acceptance pursuant to the
timetable for settlement set forth below unless the Company
and the purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each
Procedures: Book-Entry Note sold by the Company to or through an Agent
shall be as follows (unless otherwise specified pursuant to
a Terms Agreement, as defined in the Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note will pay
interest annually or semi-annually and
whether such Note is an Amortizing Note and,
if so, the Amortization Schedule, or, in the
case of a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such
time), Interest
C-11
<PAGE>
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any) and
the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. Agent's commission, if any,determined as
provided in the Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
10. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above. The Trustee will then assign a CUSIP
number to the Global Security representing such
Note and will notify the Company and the Agent of
such CUSIP number by telephone or electronic
transmission (confirmed in writing) as soon as
practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the relevant
C-12
<PAGE>
Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which
in the case of Floating Rate Notes which
reset daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Record
Date as defined in the Note) and, if known,
the amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time) and whether such Note is
an Amortizing Note (by an appropriate
notation in the comments field of DTC's
Participant Terminal System).
5. The DTC participant number of the institution
through which the Company will hold the
Book-Entry Note.
D. The Trustee will complete and authenticate the
Global Security representing such Note in
accordance with the terms of the written order of
the Company then in effect.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant
C-13
<PAGE>
account and credit such Note to the relevant
Agent's participant account and (ii) debit such
Agent's settlement account and credit the
Trustee's settlement account for an amount equal
to the price of such Note less such Agent's
commission, if any. The entry of such a deliver
order shall constitute a representation and
warranty by the Trustee to DTC that (a) the Global
Security representing such Book-Entry Note has
been issued and authenticated and (b) the Trustee
is holding such Global Security pursuant to the
Medium-Term Note Certificate Agreement between the
Trustee and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement account of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. The Trustee, upon confirming receipt of such
funds, will credit to the U.S. dollar account of
the Company maintained at a bank in New York City,
notified to the Trustee from time to time, in
funds available for immediate use in the amount
transferred to the Trustee, in accordance with
Settlement Procedure "F".
J. Unless the relevant Agent purchased such Note as
principal, such Agent
C-14
<PAGE>
will confirm the purchase of such Note to the
purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date under the
Indenture and setting forth a brief description of
any sales of which the Company has advised the
Trustee but which have not yet been settled.
Settlement For sales by the Company of
Procedures Book-Entry Notes to or through an Agent (unless
Timetable: otherwise specified pursuant to a Terms Agreement) for
settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth above shall
be completed as soon as possible but not later than the
respective times (New York City time) set forth below:
Settlement
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
a.m., 12 noon and 2:00 p.m., respectively, on the first
Business Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12 noon and 2:00 p.m., respectively, on the
second Business Day before the settlement date. Settlement
C-15
<PAGE>
Procedure "H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect
on the settlement date. If settlement of a Book-Entry Note
is rescheduled or cancelled, the Trustee, after receiving
notice from the Company or the Agent, will deliver to DTC,
through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled settlement
date.
Failure to If the Trustee fails to enter an SDFS deliver
Settle: order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit
such Note to the Trustee's participant account, provided
that the Trustee's participant account contains a principal
amount of the Global Security representing such Note that is
at least equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will mark such Global Security "cancelled," make
appropriate entries in the Trustee's records and send such
cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, the
Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry
Note or Notes and shall be cancelled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in
C-16
<PAGE>
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and
"G", respectively. Thereafter, the Trustee will deliver the
withdrawal message and take the related actions described in
the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any action
in accordance with its SDFS operating procedures then in
effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedures "D" and "F", for
the authentication and issuance of a Global Security
representing the Book-Entry Notes to be represented by such
Global Security and will make appropriate entries in its
records.
Posting Rates The Company and the Agents will discuss
by Company: from time to time the rates of interest per annum to be
borne by and the maturity of Securities that may be sold as
a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and
maturities for an offering period ("posting). If the
Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the
Agent.
Trustee Not To Nothing herein shall be deemed to
Risk Funds: require the Trustee to risk or expend its own funds in
connection with any payments to the Company, the Agents, DTC
or any holders of Notes, it being understood by all parties
that payments made by the Trustee to the Company, the
Agents, DTC or any holders of Notes shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated
Notes.
C-17
<PAGE>
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date, which
will be (i) with respect to an original Certificated Note
(or any portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect to any
Certificated Note (or any portion thereof) issued
subsequently upon exchange of a Certificated Note, or in
lieu of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and A Certificated Note may be presented
Exchanges: for transfer or exchange at the principal corporate trust
office of the Trustee. Certificated Notes will be
exchangeable for other Certificated Notes having identical
terms but different authorized denominations without service
charge. Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine months or
more from its date of issue.
Currency: The currency denomination with respect to any Certificated
Note and the currency of payment of interest and principal
with respect to any such Certificated Note shall be as set
forth therein and in the applicable pricing supplement.
Denominations: Unless otherwise provided in a Prospectus Supplement, the
denomination of any Certificated Note will be a minimum of
$1,000 (or in the case of Notes not denominated in U.S.
dollars, the equivalent thereof in the applicable foreign
currency or composite currency, rounded down to the nearest
1,000 units of such foreign currency or composite currency)
or any amount in excess thereof that is an integral multiple
of $1,000 (or in the case of Notes not denominated in U.S.
dollars, 1,000 units of such foreign currency or composite
currency).
Interest: GENERAL. Interest on each Certificated Note will accrue
from the Original Issue Date of
C-18
<PAGE>
such Note for the first interest period and from the most
recent date to which interest has been paid for all
subsequent interest periods. Unless otherwise specified
therein, each payment of interest on a Certificated Note
will include interest accrued to but excluding the Interest
Payment Date.
RECORD DATES. The Record Date with respect to any Interest
Payment Date in respect of a Certificated Note shall be the
date fifteen calendar days immediately preceding such
Interest Payment Date.
FIXED RATE CERTIFICATED NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes, other than
Amortizing Notes, will be made semiannually on June 1 and
December 1 of each year, and at maturity or upon any earlier
redemption or repayment and principal and interest payments
on Certificated Amortizing Notes will be made semiannually
on June 1 and December 1 of each year or quarterly on March
1, June 1, September 1 and December 1 of each year, and at
maturity (or any redemption or repayment date); PROVIDED,
HOWEVER, that in the case of a Fixed Rate Certificated Note
issued between a Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date.
FLOATING RATE CERTIFICATED NOTES. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest will be
payable, in the case of Floating Rate Certificated Notes
with a daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third Wednesday of
March, June, September and December, as specified pursuant
to Settlement Procedure "A" below; in the case of Floating
Rate Certificated Notes with a quarterly Interest Reset
Date, on the third Wednesday of March, June, September and
December of each year; in the case of Floating Rate
Certificated Notes with a semiannual Interest Reset Date, on
the third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of Floating
Rate Certificated Notes
C-19
<PAGE>
with an annual Interest Reset Date, on the third Wednesday
of the month specified pursuant to Settlement Procedure "A"
below; PROVIDED, HOWEVER, that if an Interest Payment Date
for Floating Rate Certificated Notes would otherwise be a
day that is not a Business Day with respect to such Floating
Rate Certificated Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Notes, except in the case of a
LIBOR Note if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and PROVIDED, FURTHER,
that in the case of a Floating Rate Certificated Note issued
between a Record Date and the related Interest Payment Date
(a "Certificated Gap Note"), the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date, and in such case, notwithstanding
the fact that an Interest Reset Date may occur prior to such
Interest Payment Date, the Initial Interest Rate shall
remain in effect until the first Interest Reset Date
occurring on or subsequent to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. On the first
Business Day of March, June, September and December of each
year, the Trustee will deliver to the Company a written list
of Record Dates and Interest Payment Dates that will occur
with respect to Certificated Notes during the six-month
period beginning on such first Business Day. Promptly after
each date upon which interest is determined for Floating
Rate Notes issued in certificated form, the Calculation
Agent will notify the Company and the Trustee of the
interest rates determined on such dates.
Calculation of FIXED RATE CERTIFICATED NOTES. Interest
Interest: on Fixed Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of a year
of twelve thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined as set
forth in the form of such Notes. Interest on Floating Rate
Certificated Notes will be calculated on the basis of actual
days elapsed and a year of 360 days, except that, in the
case of Treasury Rate Notes and
C-20
<PAGE>
CMT Rate Notes, interest will be calculated on the basis of
the actual number of days in the year.
Payments of The Company will pay to the Trustee, as
Principal and the paying agent, the principal amount
Interest: of each Certificated Note (other than an Amortizing Note),
together with interest due thereon, at its Maturity Date or
upon redemption or repayment of such Note in funds available
for immediate use by the Trustee. In the case of an
Amortizing Note, the Company will pay to the Trustee, as
paying agent, the principal amount due on such Note on such
date, together with interest due thereon, at its Maturity
Date or upon redemption or repayment of such Note in funds
available for immediate use by the Trustee. The Trustee
will pay such amount to the holder of such Note at its
Maturity Date or upon redemption or repayment of such Note
upon presentation and surrender of such Note to the Trustee.
Such payment, together with payment of interest due at
maturity or upon redemption or repayment, will be made in
funds available for immediate use by the holder of such
Note. Promptly after such presentation and surrender, the
Trustee will cancel such Certificated Note in accordance
with the terms of the Indenture and deliver it to the
Company with a certificate of cancellation. Unless
otherwise specified in the applicable Pricing Supplement,
all interest payments on a Certificated Note or, in the case
of a Certificated Amortizing Note, payments of principal and
interest (other than interest (or interest and principal)
due at maturity or upon redemption or repayment) will be
made by check drawn on the Trustee (or another person
appointed by the Trustee) and mailed by the Trustee to the
person entitled thereto as provided in such Note and the
Indenture; PROVIDED, HOWEVER, that (i) the holder of
$10,000,000 or more of Notes having the same Interest
Payment Date will be entitled to receive payment by wire
transfer of immediately available funds and (ii) unless
otherwise specified in the applicable Pricing Supplement or
unless alternative arrangements are made, payments on Notes
in a currency other than U.S. dollars will be made by wire
transfer of immediately available funds to an account
maintained by the payee with a bank located outside the
United States and, with respect to clauses (i) and (ii)
above, the holder of such
C-21
<PAGE>
Notes will provide the Trustee with appropriate and timely
wire transfer instructions.
Promptly after each Record Date, the Trustee will deliver to
the Company a written notice specifying the amount of
interest to be paid on each Certificated Note other than an
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or any earlier redemption or repayment date) and
the total of such amounts. In the case of Amortizing Notes,
the Trustee will provide separate written notice to the
Company specifying the amount of interest and principal to
be paid on each Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date coinciding
with maturity or any earlier redemption or repayment date)
and the total of such amounts. Interest at maturity or upon
redemption or repayment will be payable to the person to
whom the payment of principal is payable. On or about the
first Business Day of each month, the Trustee will deliver
to the Company a written list of principal and interest, to
the extent ascertainable, to be paid on each Certificated
Note including Amortizing Notes maturing or to be redeemed
or repaid in the following month. The Trustee will be
responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate Certificated
Note is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from
and after such Interest Payment Date, Maturity Date or
redemption or repayment date, as the case may be. If any
Interest Payment Date or the Maturity Date or redemption or
repayment date of a Floating Rate Certificated Note would
otherwise fall on a day that is not a Business Day with
respect to such Note, the payment due on such day shall be
made on the next succeeding day that is a Business Day with
respect to such Note with the same effect as if such
Business Day were the stated Interest Payment Date, Maturity
Date or date of redemption or repayment, as the case may be,
except that, in the case of Certificated LIBOR Notes, if
such Business Day is in the next succeeding calendar month,
such Interest
C-22
<PAGE>
Payment Date, Maturity Date or redemption or repayment date
shall be the immediately preceding day that is a Business
Day with respect to such Certificated LIBOR Notes.
Preparation of If any order to purchase a Certificated
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a Pricing Supplement
reflecting the terms of such Note and will arrange to file
10 copies of such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and will deliver the number of copies of such
Pricing Supplement to the relevant Agent as such Agent shall
request by the close of business on the following Business
Day. The relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agent receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to which
they are attached (other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for an authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of such Note
against receipt of immediately available funds shall
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the fifth
Business Day following such acceptance pursuant to the
timetable for settlement set forth below unless the Company
and the purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company to or through an Agent
shall be as follows (unless otherwise specified pursuant to
a Terms Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Certificated Note and of the
following settlement information:
C-23
<PAGE>
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Currency or currency unit, principal amount
and, if different, currency in which payments
of principal and interest may be made.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semi-annually
and whether such Note is an Amortizing Note
and, if so, the Amortization Schedule, or, in
the case of a Floating Rate Certificated
Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate Rate
Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined as
provided in the Agreement.
C-24
<PAGE>
11. Denominations.
12. Net proceeds to the Company.
13. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
14. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Trustee.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by such Agent for
payment to the account of the Company maintained
at the Trustee, New York, New York (or, with
respect to Notes payable in a
C-25
<PAGE>
Specified Currency other than U.S. dollars, to an
account maintained at a bank selected by the
Company notified to the relevant Agent from time
to time in writing) in funds available for
immediate use, of an amount equal to the price of
such Note less such Agent's commission, if any.
In the event that the instructions given by such
Agent for payment to the account of the Company
are revoked, the Company will as promptly as
possible wire transfer to the account of such
Agent an amount of immediately available funds
equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will
also send to the Company a statement setting forth
the principal amount of the Notes outstanding as
of that date under the Indenture and setting forth
a brief description of any sales of which the
Company has advised the Trustee but which have not
yet been settled.
Settlement For sales by the Company of Certificated Notes
Procedures to or through an Agent (unless otherwise
Timetables: specified pursuant to a Terms Agreement), Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 p.m. on day before
settlement date
B. 3:00 p.m. on day before
settlement date
C-D 2:15 p.m. on settlement date
C-26
<PAGE>
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure to If a purchaser fails to accept delivery
Settle: of and make payment for any Certificated Note, the relevant
Agent will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire transfer to the
account of such Agent an amount equal to the amount
previously credited thereto in respect of such Note. Such
wire transfer will be made on the settlement date, if
possible, and in any event not later than the Business Day
following the settlement date. If the failure shall have
occurred for any reason other than a default by such Agent
in the performance of its obligations hereunder and under
the Agreement, then the Company will reimburse such Agent or
the Trustee, as appropriate, on an equitable basis for its
loss of the use of the funds during the period when they
were credited to the account of the Company (such
reimbursement for loss of the use of such funds to be based
on the federal funds effective rate then in effect).
Immediately upon receipt of the Certificated Note in respect
of which such failure occurred, the Trustee will mark such
Note "cancelled", make appropriate entries in the Trustee's
records and send such Note to the Company.
Posting Rates The Company and the Agents will from time
by Company: to time discuss the rates of interest per annum to be borne
by and the maturity of Securities that may be sold as a
result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and
maturities for an offering period ("posting"). If the
Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the
Agent.
Trustee Not to Nothing herein shall be deemed to
Risk Funds: require the Trustee to risk or expend its own funds in
connection with any payments to the Company, the Agents or
any holders of Notes, it being understood by all parties
that payments made by the Trustee to the Company, the Agents
or any holders of Notes shall be made only to the extent
that funds are provided to the Trustee for such purpose.
C-27
<PAGE>
C-28
<PAGE>
EXHIBIT D
FOREIGN CURRENCY AMENDMENT NO. ___________
TO DISTRIBUTION AGREEMENT, DATED MARCH 16, 1995
AS AMENDED
-----------------------------------------------
[Insert Title of Foreign Currency]
The undersigned hereby agree that for the purposes of the issue and
sale of Securities denominated in [title of currency or currency unit] (the
"Applicable Foreign Currency") pursuant to the Distribution Agreement, dated
March 16, 1995, as it may be amended (the "Distribution Agreement"), the
following additions and modifications shall be made to the Distribution
Agreement. The additions and modifications adopted hereby shall be of the same
effect for the sale under the Distribution Agreement of all Securities
denominated in the Applicable Foreign Currency, whether offered on an agency or
principal basis, but shall be of no effect with respect to Securities
denominated in any currency or currency unit other than the Applicable Foreign
Currency.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement. The terms Agent or Agents, as used in the
Distribution Agreement, shall be deemed to refer only to the undersigned Agents
for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc., according to the customary practice of the Agents
when acting as underwriters in offerings of the Applicable Securities.]
_________, 19__
BARNETT BANKS, INC.
By ________________
Name:
Title:
[Name(s) of Agent(s) participating
in the offering of Notes in the Applicable Foreign Currency]
By ________________
Name:
Title:
<PAGE>
SUBORDINATED INDENTURE
-------------------------------------------------
BARNETT BANKS, INC.
TO
CHEMICAL BANK,
TRUSTEE
________________
INDENTURE
Dated as of March 16, 1995
-------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
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 ................................. 17
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
SECTION 115. Counterparts.................................................. 19
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally............................................... 19
SECTION 202. Form of Trustee's Certificate of
Authentication.............................................. 20
-i-
<PAGE>
Page
----
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................... 20
SECTION 302. Denominations................................................. 25
SECTION 303. Execution, Authentication, Delivery and
Dating...................................................... 25
SECTION 304. Temporary Debt Securities; Exchange of
Temporary Global Notes for Definitive Bearer Securities..... 29
SECTION 305. Registration, Transfer and Exchange........................... 36
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities.................................................. 39
SECTION 307. Payment of Interest; Interest Rights
Preserved................................................... 40
SECTION 308. Cancellation.................................................. 43
SECTION 309. Computation of Interest....................................... 44
SECTION 310. Currency Debt Securities...................................... 44
SECTION 311. Judgments..................................................... 48
SECTION 312. Exchange Upon Default......................................... 49
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................... 49
SECTION 402. Application of Trust Money.................................... 51
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................. 51
SECTION 502. Acceleration of Maturity; Rescission and
Annulment................................................... 52
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................... 53
-ii-
<PAGE>
Page
----
SECTION 504. Trustee May File Proofs of Claim.............................. 55
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities............................... 56
SECTION 506. Application of Money Collected................................ 56
SECTION 507. Limitation on Suits........................................... 57
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Enforce Conversion
Rights...................................................... 57
SECTION 509. Restoration of Rights and Remedies............................ 58
SECTION 510. Rights and Remedies Cumulative................................ 58
SECTION 511. Delay or Omission Not Waiver.................................. 58
SECTION 512. Control by Holders............................................ 59
SECTION 513. Waiver of Past Defaults....................................... 59
SECTION 514. Undertaking for Costs......................................... 60
SECTION 515. Waiver of Stay or Extension Laws.............................. 60
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................... 60
SECTION 602. Notice of Defaults............................................ 61
SECTION 603. Certain Rights of Trustee..................................... 61
SECTION 604. Not Responsible for Recitals or Issuance of
Debt Securities............................................. 63
SECTION 605. May Hold Debt Securities...................................... 63
SECTION 606. Money Held in Trust........................................... 63
SECTION 607. Compensation and Reimbursement................................ 63
SECTION 608. Disqualification; Conflicting Interest........................ 64
SECTION 609. Corporate Trustee Required; Eligibility....................... 65
SECTION 610. Resignation and Removal; Appointment of
Successor................................................... 65
-iii-
<PAGE>
Page
----
SECTION 611. Acceptance of Appointment by Successor........................ 67
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business...................................... 68
SECTION 613. Preferential Collection of Claims Against
Company..................................................... 69
SECTION 614. Appointment of Authenticating Agent........................... 69
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders........................................ 72
SECTION 702. Preservation of Information; Communication
to Holders.................................................. 72
SECTION 703. Reports by Trustee............................................ 74
SECTION 704. Reports by Company............................................ 74
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders............................................... 75
SECTION 802. Proof of Ownership; Proof of Execution of
Instruments by Holders...................................... 75
SECTION 803. Persons Deemed Owners......................................... 76
SECTION 804. Revocation of Consents; Future Holders
Bound....................................................... 77
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 901. Purposes of Meetings.......................................... 77
SECTION 902. Call of Meetings by Trustee................................... 78
SECTION 903. Call of Meetings by Company or Holders........................ 78
SECTION 904. Qualifications for Voting..................................... 78
SECTION 905. Regulations................................................... 79
-iv-
<PAGE>
Page
----
SECTION 906. Voting........................................................ 80
SECTION 907. No Delay of Rights by Meeting................................. 80
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 1001. Company May Consolidate, etc., Only on
Certain Terms.............................................. 80
SECTION 1002. Successor Corporation Substituted............................ 81
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without Consent of Holders........... 82
SECTION 1102. Supplemental Indentures With Consent of Holders.............. 84
SECTION 1103. Execution of Supplemental Indentures......................... 85
SECTION 1104. Effect of Supplemental Indentures............................ 86
SECTION 1105. Conformity with Trust Indenture Act.......................... 86
SECTION 1106. Reference in Debt Securities to Supplemental Indentures...... 86
SECTION 1107. Notice of Supplemental Indenture............................. 86
ARTICLE TWELVE
COVENANTS
SECTION 1201. Payment of Principal, Premium and Interest.................. 86
SECTION 1202. Payment of Additional Amounts................................ 87
SECTION 1203. Maintenance of Office or Agency.............................. 89
SECTION 1204. Money for Debt Securities; Payments To Be Held in Trust...... 91
SECTION 1205. Corporate Existence.......................................... 92
SECTION 1206. Purchase of Debt Securities by Company....................... 93
SECTION 1207. Intentionally Deleted........................................ 93
-v-
<PAGE>
Page
----
SECTION 1208. Intentionally Deleted........................................ 93
SECTION 1209. Intentionally Deleted........................................ 93
SECTION 1210. Officers' Certificate as to Default; Notice of Default....... 93
SECTION 1211. Waiver of Certain Covenants.................................. 94
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
SECTION 1301. Applicability of Article..................................... 94
SECTION 1302. Tax Redemption; Special Tax Redemption....................... 94
SECTION 1303. Election to Redeem; Notice to Trustee........................ 97
SECTION 1304. Selection by Trustee of Debt
Securities to Be Redeemed.................................. 98
SECTION 1305. Notice of Redemption......................................... 99
SECTION 1306. Deposit of Redemption Price..................................100
SECTION 1307. Debt Securities Payable on Redemption Date...................100
SECTION 1308. Debt Securities Redeemed in Part.............................102
ARTICLE FOURTEEN
SINKING FUNDS
SECTION 1401. Applicability of Article.....................................102
SECTION 1402. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities.................................................103
SECTION 1403. Redemption of Debt Securities for Sinking Fund..............103
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Applicability of Article.....................................106
SECTION 1502. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations..................................................106
-vi-
<PAGE>
Page
----
SECTION 1503. Deposited Moneys and U.S Government Obligations to Be Held in
Trust......................................................108
SECTION 1504. Repayment to Company.........................................109
SECTION 1505................................................................109
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1601. Debt Securities Subordinate to Senior Indebtedness........109
SECTION 1602. Reliance on Certificate of Liqui- dating Agent; Further
Evidence as to Ownership of Senior Indebtedness.........112
SECTION 1603. Payment Permitted If No Default...........................113
SECTION 1604. Trustee Not Charged with Knowledge of Prohibition.........113
SECTION 1605. Trustee to Effectuate Subordination.......................114
SECTION 1606. Rights of Trustee as Holder of Senior Indebtedness........114
SECTION 1607. Article Applicable to Paying Agents.......................115
SECTION 1608. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.................115
ARTICLE SEVENTEEN
CONVERSION OF DEBT SECURITIES
SECTION 1701. Applicability of Article.....................................115
SECTION 1702. Exercise of Conversion Privilege.............................116
SECTION 1703. Fractional Interests.........................................117
SECTION 1704. Adjustment of Conversion Price...............................118
SECTION 1705. Continuation of Conversion Privilege in
Case of Merger, Consolidation or Sale of Assets............122
SECTION 1706. Notice of Certain Events.....................................123
-vii-
<PAGE>
Page
----
SECTION 1707. Taxes on Conversion..........................................124
SECTION 1708. Company to Provide Stock.....................................124
SECTION 1709. Disclaimer of Responsibility for Certain Matters.............125
SECTION 1710. Return of Funds Deposited for Redemption of Converted Debt
Securities.................................................126
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A
EXHIBIT B
-viii-
<PAGE>
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF MARCH 16, 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
(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>
INDENTURE dated as of March 16, 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:
(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;
<PAGE>
2
(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.
"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
<PAGE>
3
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 other day on which
banking institutions or trust companies in that Place of Payment or other
location or the city in which the Corporate Trust Office is located are
authorized or obligated by law to close, except as otherwise specified pursuant
to Section 301.
"CEDEL" means Cedel 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
<PAGE>
4
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 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 corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is located at 450 West 33rd Street, 15th Floor, 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.
<PAGE>
5
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" mean Dollars or Foreign Currency.
"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(c).
"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).
"Dual Currency Security" means any Debt Security as to which the
Company has the option of making scheduled payment of principal, premium, if
any, or interest in either of two currencies, all as specified in accordance
with Section 301.
"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.
<PAGE>
6
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"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.
The Exchange Rate Agent may be Chemical Bank.
"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 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.
<PAGE>
7
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 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
<PAGE>
8
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:
(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
<PAGE>
9
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 a Responsible Officer of 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 obligor. In
determining whether the Holders of the requisite principal amount of Outstanding
Debt Securities have performed any Act hereunder, the principal amount of (i) 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) and (ii)
a Dual Currency Security that shall be deemed to be Outstanding for such purpose
shall be the amount that would be due and payable with respect to such Dual
Currency Security as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"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(b).
<PAGE>
10
"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 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 with direct
<PAGE>
11
responsibility for the administration of this Indenture 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.
"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 (i) 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).
"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
<PAGE>
12
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.
"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, 1994), 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(b).
"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.
"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; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), and its "possessions" which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands.
"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
<PAGE>
13
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).
"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
<PAGE>
14
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;
(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 care should know, that the certificate of opinion
<PAGE>
15
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.
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
<PAGE>
16
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 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
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.
<PAGE>
17
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.
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
<PAGE>
18
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 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
<PAGE>
19
upon or in respect of the shares of capital stock not fully paid.
SECTION 115. Counterparts.
For the convenience of the parties, any number of counterparts of
this Indenture may be executed by any one or more parties hereto and each such
executed counterpart shall be, and shall be deemed to be, an original, but all
of which shall constitute, and shall be deemed to constitute, in the aggregate
but one and the same instrument.
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. Any form
of Debt Security established in or pursuant to a Board Resolution must be
acceptable as to form to the Trustee, such acceptance to be evidenced by the
Trustee's authentication of Debt Securities in that form or a certificate signed
by a Responsible Officer of the Trustee and delivered to the Company.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form (other than in global form) shall have coupons
attached.
<PAGE>
20
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 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:
(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
<PAGE>
21
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, 1308 or 1702);
(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 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;
<PAGE>
22
(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 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
<PAGE>
23
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;
(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
<PAGE>
24
(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 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;
(25) if any of the Debt Securities of such series are issuable as
Dual Currency Securities, the two currencies in either of which any
scheduled payment of principal, premium, if any, or interest due thereon
may be made at the option of the Company, and any other special terms with
respect to such Dual Currency Securities; and
(26) 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
<PAGE>
25
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 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 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
<PAGE>
26
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, in addition to any Officers' Certificate and Opinion
of Counsel required to be furnished to the Trustee pursuant to Section 102, (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 a non-continuous 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;
<PAGE>
27
(2) in the case of a non-continuous 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 necessary corporate action of the
Company; in the case of a non-continuous 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
<PAGE>
28
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.
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
and Opinion of Counsel otherwise required by Section 102, 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
<PAGE>
29
Indenture. Notwithstanding the foregoing, if any Debt Security and Coupons
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Debt Security and
Coupons 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 and Coupons has never been issued and sold by the Company, for all
purposes of this Indenture such Debt Security and Coupons 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.
(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
<PAGE>
30
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 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 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 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
<PAGE>
31
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, 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
<PAGE>
32
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 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
<PAGE>
33
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 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.
<PAGE>
34
(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 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
<PAGE>
35
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 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 make such Debt Securities available for delivery to the Persons in whose
names such Debt Securities are so registered.
<PAGE>
36
(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 and otherwise complies with applicable law.
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 so long as there is only one
Security Register per series of Debt Securities.
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.
<PAGE>
37
(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 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
<PAGE>
38
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 registration of transfer or
exchange of Debt Securities shall be valid obligations of the Company, evidence
the same debt, and be entitled to the same benefits under this Indenture as the
Debt Securities surrendered for such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of 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 registration of 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, register the
transfer of 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, register the transfer of 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
<PAGE>
39
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 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 shall have received 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
<PAGE>
40
(including the fees and expenses of the Trustee) connected therewith.
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, registration of 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
second 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.
Subject to the certification requirements set forth in the second
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
<PAGE>
41
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:
(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
<PAGE>
42
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
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 registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
<PAGE>
43
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, registration of 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 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
<PAGE>
44
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.
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 payment date in the relevant Currency as provided in paragraph (b) of
this Section 310.
<PAGE>
45
(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.
(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
<PAGE>
46
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 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
<PAGE>
47
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 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 of the Debt Securities denominated or payable in such
Currency) 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 of the
Debt Securities denominated or payable in such Currency) 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 this Indenture where the
Holders of Outstanding Debt Securities may perform an Act which requires that a
specified percentage
<PAGE>
48
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.
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.
<PAGE>
49
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 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 conversion, if any, right 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 as to
such series, 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
discharged from such trust, as provided in Section 1204) have been
delivered to the Trustee for cancellation; or
<PAGE>
50
(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 Trustee and 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 with respect to the Debt Securities of such
series;
(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.
<PAGE>
51
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Debt Securities, 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
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
<PAGE>
52
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 Supplemental Indenture or Board
Resolution with respect to Debt Securities of a series, any other
Event of Default provided with respect to Debt Securities of such
series.
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 (i) Discount Securities, such portion of the
principal amount of such Discount Securities as may be specified in the terms of
such Discount Securities or (ii) Dual Currency Securities, the amount determined
in accordance with the specified terms of those Debt 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 of the type set forth in
subparagraph (1) or (2) of Section 501 occurs and is continuing, the principal
of and any interest on the Debt Securities then Outstanding 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
<PAGE>
53
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 acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities, to the extent
that payment of such interest is lawful;
(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 and all other amounts due the
Trustee under Section 607; 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
<PAGE>
54
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,
(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 and
all other amounts due the Trustee under Section 607.
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.
<PAGE>
55
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 or Dual
Currency Securities, such 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 all other amounts due the Trustee under Section 607) 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
<PAGE>
56
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 and all other amounts due the
Trustee under Section 607, be for the ratable benefit of the Holders of the Debt
Securities or Coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons 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: Subject to Article Sixteen, 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
<PAGE>
57
THIRD: The balance, if any, to the Company.
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;
(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.
<PAGE>
58
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 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.
<PAGE>
59
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
(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.
<PAGE>
60
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 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
<PAGE>
61
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, 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(4)
with respect to Debt Securities of such series, no such notice to Holders shall
be given until at least 90 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
<PAGE>
62
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 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;
(h) the Trustee shall not be charged with knowledge of any default
(as defined in Section 602) or Event of Default with respect to the Debt
Securities of any series for which it is acting as Trustee unless either
(1) a Responsible Officer of the Trustee shall have actual knowledge of
such default or Event of
<PAGE>
63
Default or (2) written notice of such default or Event of Default shall
have been given to the Trustee by the Company or any other obligor on such
Debt Securities or by any Holder of such Debt Securities; and
(i) 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 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 in writing 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);
<PAGE>
64
(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
resignation or removal of any Trustee and 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.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(1) or (2), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
Nothing in Article Sixteen shall apply to the claims of, or payments
to, the Trustee under this Section 6.07.
SECTION 608. Disqualification; Conflicting Interests.
<PAGE>
65
If the Trustee has or shall acquire a conflicting interest within
the meaning of Section 310(b) 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 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:
<PAGE>
66
(1) the Trustee shall fail to comply with Section 608(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months, unless the
Trustee's duty to resign is stayed in accordance with the provisions of
Section 310(b) of the Trust Indenture Act, 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.
(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
<PAGE>
67
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.
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
<PAGE>
68
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 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
<PAGE>
69
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 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
<PAGE>
70
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 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:
<PAGE>
71
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
<PAGE>
72
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.
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.
<PAGE>
73
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
(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
<PAGE>
74
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 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.
(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
<PAGE>
75
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.
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 was
deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by
<PAGE>
76
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.
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
<PAGE>
77
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 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
<PAGE>
78
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.
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
<PAGE>
79
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 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.
<PAGE>
80
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.
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,
<PAGE>
81
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
(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 complies 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 Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the
<PAGE>
82
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
(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
<PAGE>
83
(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, 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.
<PAGE>
84
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 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 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
<PAGE>
85
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); or
(4) reduce the amount of the principal of a Dual Currency Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
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 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.
<PAGE>
86
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 Trust 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 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
<PAGE>
87
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
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
<PAGE>
88
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;
(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;
<PAGE>
89
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 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 following 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
<PAGE>
90
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 (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.
<PAGE>
91
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 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
<PAGE>
92
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 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.
<PAGE>
93
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.
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 signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company 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.
<PAGE>
94
SECTION 1211. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply, if so
specified pursuant to Section 301, with any 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.
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
<PAGE>
95
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 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 effective date of such
certification, documentation, information or reporting requirement, whether the
Company
<PAGE>
96
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
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
<PAGE>
97
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 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
<PAGE>
98
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 any 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
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
<PAGE>
99
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 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,
<PAGE>
100
(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 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
<PAGE>
101
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 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
<PAGE>
102
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 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
<PAGE>
103
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, whether or not cancelled pursuant to Section 308, or credit Debt
Securities which have been converted pursuant to Article 17, 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 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
<PAGE>
104
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.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any funds payable to the Company pursuant to the last paragraph of
Section 1204 from 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.
<PAGE>
105
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 fund payment date for the Debt Securities of such series on which such
moneys may be applied pursuant to the provisions of this Section.
<PAGE>
106
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 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
<PAGE>
107
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 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 all conditions precedent herein provided for
relating to the defeasance contemplated in this Section have been complied
with and 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
<PAGE>
108
(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, 1503 and Article Seventeen 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 timely
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 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.
<PAGE>
109
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, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, 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.
SECTION 1505. If the Trustee or any Paying Agent is unable to apply
any money or U.S. Government Obligations in accordance with Section 1503 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Debt
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Sections 1501 and 1502 until such time as the Trustee or any Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 1503.
ARTICLE SIXTEEN
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
<PAGE>
110
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,
(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
<PAGE>
111
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 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
<PAGE>
112
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.
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 Liquidating 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 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
<PAGE>
113
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 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
<PAGE>
114
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 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.
<PAGE>
115
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.
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.
<PAGE>
116
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 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 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,
<PAGE>
117
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
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
<PAGE>
118
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 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
<PAGE>
119
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
(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
<PAGE>
120
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 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.
<PAGE>
121
(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 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 Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a
<PAGE>
122
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 which are convertible
into Common Stock pursuant to this Article Seventeen 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 deliver to the Trustee a supplemental indenture
(which shall conform to the Trust Indenture Act 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
<PAGE>
123
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 which are convertible into Common Stock
pursuant to this Article Seventeen 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 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
<PAGE>
124
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
then, 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
which are convertible into Common Stock pursuant to this Article Seventeen, 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 1707. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
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
<PAGE>
125
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 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 Conversion Agent
nor any agent of either shall be
<PAGE>
126
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, including funds deposited with the Conversion Agent under
Section 1702 by a Holder, 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>
127
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>
STATE OF _________ )
) ss:
COUNTY OF ________ )
On the ______ day of March, 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 March, 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 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
<PAGE>
2
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
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 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 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) 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.
<PAGE>
2
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]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euro-clear
System] [CEDEL, S.A.]
By_______________________________
<PAGE>
SENIOR INDENTURE
----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BARNETT BANKS, INC.
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
-----------------------
INDENTURE
Dated as of March 16, 1995
-----------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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.................... 13
SECTION 1.3 Form of Documents Delivered to Trustee.................. 14
SECTION 1.4 Notices, etc., to Trustee and Company................... 14
SECTION 1.5 Notice to Holders; Waiver............................... 15
SECTION 1.6 Conflict with Trust Indenture Act....................... 16
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......................................... 17
SECTION 1.13 No Security Interest Created........................... 17
SECTION 1.14 Liability Solely Corporate............................. 17
SECTION 1.15 Counterparts........................................... 18
ARTICLE II
DEBT SECURITY FORMS.......................... 18
SECTION 2.1 Forms Generally......................................... 18
SECTION 2.2 Form of Trustee's Certificate of
Authentication..................................... 19
ARTICLE III
THE DEBT SECURITIES.......................... 19
SECTION 3.1 Amount Unlimited; Issuable in Series.................... 19
SECTION 3.2 Denominations........................................... 23
SECTION 3.3 Execution, Authentication, Delivery
and Dating......................................... 24
SECTION 3.4 Temporary Debt Securities; Exchange
of Temporary Global Notes for Definitive
Bearer Securities.................................. 27
SECTION 3.5 Registration, Transfer and Exchange..................... 34
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Debt Securities.................................... 36
SECTION 3.7 Payment of Interest; Interest Rights
Preserved.......................................... 38
- i -
<PAGE>
PAGE
----
SECTION 3.8 Cancellation............................................ 40
SECTION 3.9 Computation of Interest................................. 41
SECTION 3.10 Currency Debt Securities............................... 41
SECTION 3.11 Judgments.............................................. 45
SECTION 3.12 Exchange Upon Default.................................. 46
ARTICLE IV
SATISFACTION AND DISCHARGE....................... 46
SECTION 4.1 Satisfaction and Discharge of
Indenture.......................................... 46
SECTION 4.2 Application of Trust Money.............................. 48
ARTICLE V
REMEDIES................................ 48
SECTION 5.1 Events of Default....................................... 48
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment...................................... 50
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee......................... 52
SECTION 5.4 Trustee May File Proofs of Claim........................ 53
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Debt Securities...................... 54
SECTION 5.6 Application of Money Collected.......................... 54
SECTION 5.7 Limitation on Suits..................................... 54
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.......................................... 56
SECTION 5.10 Rights and Remedies Cumulative......................... 56
SECTION 5.11 Delay or Omission Not Waiver........................... 56
SECTION 5.12 Control by Holders..................................... 56
SECTION 5.13 Waiver of Past Defaults................................ 57
SECTION 5.14 Undertaking for Costs.................................. 57
SECTION 5.15 Waiver of Stay or Extension Laws....................... 58
ARTICLE VI
THE TRUSTEE.............................. 58
SECTION 6.1 Certain Duties and Responsibilities..................... 58
SECTION 6.2 Notice of Defaults...................................... 58
SECTION 6.3 Certain Rights of Trustee............................... 59
SECTION 6.4 Not Responsible for Recitals or
Issuance of Debt Securities........................ 60
SECTION 6.5 May Hold Debt Securities................................ 60
SECTION 6.6 Money Held in Trust..................................... 61
SECTION 6.7 Compensation and Reimbursement.......................... 61
- ii -
<PAGE>
PAGE
----
SECTION 6.8 Disqualification; Conflicting
Interests.......................................... 62
SECTION 6.9 Corporate Trustee Required;
Eligibility........................................ 62
SECTION 6.10 Resignation and Removal; Appointment
of Successor...................................... 62
SECTION 6.11 Acceptance of Appointment by
Successor......................................... 64
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business........................... 65
SECTION 6.13 Preferential Collection of Claims
Against Company................................... 66
SECTION 6.14 Appointment of Authenticating Agent.................... 66
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........... 68
SECTION 7.1 Company to Furnish Trustee Names
and Addresses of Holders........................... 68
SECTION 7.2 Preservation of Information;
Communication to Holders........................... 69
SECTION 7.3 Reports by Trustee...................................... 70
SECTION 7.4 Reports by Company...................................... 71
ARTICLE VIII
CONCERNING THE HOLDERS......................... 71
SECTION 8.1 Acts of Holders......................................... 71
SECTION 8.2 Proof of Ownership; Proof of
Execution of Instruments by Holders................ 71
SECTION 8.3 Persons Deemed Owners................................... 72
SECTION 8.4 Revocation of Consents; Future
Holders Bound...................................... 73
ARTICLE IX
HOLDERS' MEETINGS........................... 73
SECTION 9.1 Purposes of Meetings.................................... 73
SECTION 9.2 Call of Meetings by Trustee............................. 74
SECTION 9.3 Call of Meetings by Company or Holders.................. 74
SECTION 9.4 Qualifications for Voting............................... 74
SECTION 9.5 Regulations............................................. 75
SECTION 9.6 Voting.................................................. 75
SECTION 9.7 No Delay of Rights by Meeting........................... 76
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.......... 76
- iii -
<PAGE>
PAGE
----
SECTION 10.1 Company May Consolidate, etc.,
Only on Certain Terms............................. 76
SECTION 10.2 Successor Corporation Substituted...................... 77
ARTICLE XI
SUPPLEMENTAL INDENTURES........................ 77
SECTION 11.1 Supplemental Indentures Without
Consent of Holders................................ 77
SECTION 11.2 Supplemental Indentures With
Consent of Holders................................ 79
SECTION 11.3 Execution of Supplemental
Indentures........................................ 81
SECTION 11.4 Effect of Supplemental Indentures...................... 81
SECTION 11.5 Conformity with Trust Indenture Act.................... 81
SECTION 11.6 Reference in Debt Securities to
Supplemental Indentures........................... 81
SECTION 11.7 Notice of Supplemental Indenture....................... 81
ARTICLE XII
COVENANTS............................... 82
SECTION 12.1 Payment of Principal, Premium
and Interest...................................... 82
SECTION 12.2 Payment of Additional Amounts.......................... 82
SECTION 12.3 Maintenance of Office or Agency........................ 84
SECTION 12.4 Money for Debt Securities; Payments
To Be Held in Trust............................... 86
SECTION 12.5 Corporate Existence.................................... 87
SECTION 12.6 Purchase of Debt Securities by Company................. 87
SECTION 12.7 Limitation on Disposition of Voting
Stock of, and Merger and Sale of Assets
by, Major Constituent Banks....................... 88
SECTION 12.8 Limitation On Creation of Liens........................ 88
SECTION 12.9 Exempted Transactions.................................. 88
SECTION 12.10 Officers' Certificate as to Default;
Notice of Default................................ 89
SECTION 12.11 Waiver of Certain Covenants........................... 89
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES..................... 90
SECTION 13.1 Applicability of Article............................... 90
SECTION 13.2 Tax Redemption; Special Tax
Redemption........................................ 90
SECTION 13.3 Election to Redeem; Notice to
Trustee........................................... 93
SECTION 13.4 Selection by Trustee of Debt
Securities to Be Redeemed......................... 93
SECTION 13.5 Notice of Redemption................................... 94
- iv -
<PAGE>
PAGE
----
SECTION 13.6 Deposit of Redemption Price............................ 95
SECTION 13.7 Debt Securities Payable on
Redemption Date................................... 96
SECTION 13.8 Debt Securities Redeemed in Part....................... 97
ARTICLE XIV
SINKING FUNDS............................. 98
SECTION 14.1 Applicability of Article............................... 98
SECTION 14.2 Satisfaction of Mandatory Sinking
Fund Payments with Debt Securities................ 98
SECTION 14.3 Redemption of Debt Securities for
Sinking Fund...................................... 99
ARTICLE XV
DEFEASANCE...............................101
SECTION 15.1 Applicability of Article...............................101
SECTION 15.2 Defeasance Upon Deposit of Moneys or
U.S. Government obligations.......................101
SECTION 15.3 Deposited Moneys and U.S Government
Obligations to Be Held in Trust...................103
SECTION 15.4 Repayment to Company...................................103
ARTICLE SIXTEEN
CONVERSION OF DEBT SECURITIES.....................104
SECTION 16.1 Applicability of Article...............................104
SECTION 16.2 Exercise of Conversion Privilege.......................104
SECTION 16.3. Fractional Interests...................................105
SECTION 16.4. Adjustment of Conversion Price.........................106
SECTION 16.5. Continuation of Conversion Privilege in
Case of Merger, Consolidation or Sale
of Assets........................................110
SECTION 16.6. Notice of Certain Events...............................111
SECTION 16.7. Taxes on Conversion....................................112
SECTION 16.8. Company to Provide Stock...............................112
SECTION 16.9. Disclaimer of Responsibility for Certain
Matters..........................................113
SECTION 16.10. Return of Funds Deposited for
Redemption of Converted Debt
Securities.......................................113
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A
EXHIBIT B
- v -
<PAGE>
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF MARCH 16, 1995
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
Section 310 (a)(1).................. 6.9
(a)(2)....................... 6.9
(a)(3)....................... Not Applicable
(a)(4)....................... Not Applicable
(b).......................... 6.8
........................... 6.10
(c).......................... Not Applicable
Section 311 (a)..................... 613
(b).......................... 613
Section 312 (a)..................... 7.1
........................... 7.2(a)
(b).......................... 7.2(b)
(c).......................... 7.2(c)
Section 313 (a)..................... 7.3(a)
(b).......................... 7.3(a)
(c).......................... 7.3(a)
(d).......................... 7.3(b)
Section 314 ...................... 7.4
(b).......................... Not Applicable
(c)(1)....................... 1.2
(c)(2)....................... 1.2
(c)(3)....................... Not Applicable
(d).......................... Not Applicable
(e).......................... 1.2
Section 315 (a)..................... 6.1
(b).......................... 6.2
........................... 7.3(a)
(c).......................... 6.1
(d).......................... 6.1
(d) (1)...................... 6.1
(d) (2)...................... 6.1
(d) (3)...................... 6.1
(e).......................... 5.14
Section 316 (a)..................... 1.1
(a)(1)(A).................... 5.2
........................... 5.12
(a)(1)(B).................... 5.13
(a)(2)....................... Not Applicable
(b).......................... 5.8
Section 317 (a)(1).................. 5.3
(a)(2)....................... 5.4
(b).......................... 12.4
Section 318 (a)..................... 1.6
- --------------------
Note: This reconciliation and tie shall not , for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
INDENTURE dated as of March 16, 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 national 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;
(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
<PAGE>
2
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 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.
<PAGE>
3
"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 other day on which
banking institutions or trust companies in that Place of Payment or other
location or the city in which the Corporate Trust Office is located are
authorized or obligated by law to close, except as otherwise specified pursuant
to Section 3.1.
"CEDEL" means Cedel 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 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.
<PAGE>
4
"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.
"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, Suite 0126, Chicago, Illinois
60670-0126, Attention: Corporate Trust Services Division, except that for
purposes of Section 12.3, such term shall mean the office or agency of the
Trustee in the Borough of Manhattan, the City of New York, which office at the
date hereof is located at 14 Wall Street, Eighth Floor, New York, New York 10005
or in the City of London at First Chicago House, 90 Long Acre, Suite 5000,
London WC2E 9RB, England.
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
<PAGE>
5
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.
"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(c).
"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).
"Dual Currency Security" means any Debt Security as to which the
Company has the option of making scheduled payment of principal, premium, if
any, or interest in either of two currencies, all as specified in accordance
with Section 3.1.
"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.
<PAGE>
6
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"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 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.
<PAGE>
7
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, 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
<PAGE>
8
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:
(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
<PAGE>
9
(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 obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Debt Securities have
performed any Act hereunder, the principal amount of (i) 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) and (ii) a Dual
Currency Security that shall be deemed to be Outstanding for such purpose shall
be the amount that would be due and payable with respect to such Dual Currency
Security as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.2.
"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.
<PAGE>
10
"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 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
<PAGE>
11
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"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, 1994), 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.
"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
<PAGE>
12
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; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), and its "possessions" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
Northern Mariana Islands.
"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.
"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
<PAGE>
13
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.
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.
<PAGE>
14
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 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
<PAGE>
15
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) 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
<PAGE>
16
defect in any notice so mailed to any particular Holder, shall affect the
sufficiency of such notice with respect to other Holders, and any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given. In 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.
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.
<PAGE>
17
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 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
<PAGE>
18
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.
SECTION 1.15 Counterparts.
For the convenience of the parties, any number of counterparts of
this Indenture may be executed by any one or more parties hereto and each such
executed counterpart shall be, and shall be deemed to be, an original, but all
of which shall constitute, and shall be deemed to constitute, in the aggregate
but one and the same instrument.
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 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.
<PAGE>
19
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
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
<PAGE>
20
of such series pursuant to Sections 3.4, 3.5, 3.6, 11.6, 13.8 or 16.2);
(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 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;
<PAGE>
21
(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 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 denominated or payable without such election, in addition
or in lieu of the provisions of Section 3.10, the period or
<PAGE>
22
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 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
<PAGE>
23
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;
(25) If any of the Debt Securities of such series are issuable as
Dual Currency Securities, the two currencies in either of which any
scheduled payment of principal, premium, if any, or interest due thereon
may be made at the option of the Company, and any other special terms with
respect to such Dual Currency Securities; and
(26) 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
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.
<PAGE>
24
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 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
<PAGE>
25
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 a non-continuous 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 3.3,
will constitute sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities and Coupons;
(2) in the case of a non-continuous 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
<PAGE>
26
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 a non-continuous 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 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
<PAGE>
27
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 and Coupons shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Debt Security and Coupons 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 and Coupons has never been issued and sold by the Company, for all
purposes of this Indenture such Debt Security and Coupons 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 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
<PAGE>
28
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.
(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 the Trustee, or at the direction of the Company, another
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
<PAGE>
29
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 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 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
<PAGE>
30
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 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,
<PAGE>
31
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.
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 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.
<PAGE>
32
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.
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
<PAGE>
33
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 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
<PAGE>
34
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 and otherwise complies with applicable
law.
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 registering transfers and
exchanges of Registered Securities as herein provided; PROVIDED, HOWEVER,
that the Company may appoint co-Security Registrars so long as there is only one
Security Register per series of Debt Securities.
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
<PAGE>
35
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 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.
<PAGE>
36
(c) Except as otherwise specified pursuant to Section 3.1, 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 registration of transfer
or exchange of Debt Securities shall be valid obligations of the Company,
evidence the same debt, and be entitled to the same benefits under this
Indenture as the Debt Securities surrendered for such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration
of 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 registration of 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, register the
transfer of 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, register the transfer of 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.
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
<PAGE>
37
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 shall have received 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.
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.
<PAGE>
38
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, registration of 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
second 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.
Subject to the certification requirements set forth in the second
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
<PAGE>
39
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 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
<PAGE>
40
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
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, registration of 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 manner whatsoever, and may
<PAGE>
41
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 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
<PAGE>
42
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 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
<PAGE>
43
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 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
<PAGE>
44
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
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 of the Debt
Securities denominated or payable in such Currency) 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 of the Debt Securities denominated or payable in such
Currency) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent
<PAGE>
45
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 Agent, if any, and shall not otherwise have any duty or
obligation to determine such information independently.
(k) For purposes of any provision of this 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 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
<PAGE>
46
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 conversion, if any, right 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 as to
such series, 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 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
<PAGE>
47
(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 the
Company, the obligations of the Trustee and 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 with respect to the Debt Securities of such
series;
(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 with respect to
any series of Debt Securities, 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,
<PAGE>
48
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
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
<PAGE>
49
(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 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
<PAGE>
50
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 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.
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,
<PAGE>
51
if any Debt Securities of such series are (i) Discount Securities, such portion
of the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities or (ii) Dual Currency Securities, the amount
determined in accordance with the specified terms of those Debt 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 and interest thereon at the rate or
rates prescribed therefor in such Debt Securities, to the extent
that payment of such interest is lawful;
(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;
<PAGE>
52
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,
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.
<PAGE>
53
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 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 or Dual
Currency Securities, such 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
<PAGE>
54
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.
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 Company.
<PAGE>
55
SECTION 5.7 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;
(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
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
<PAGE>
56
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.
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
<PAGE>
57
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
(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
<PAGE>
58
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 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
<PAGE>
59
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
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 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;
<PAGE>
60
(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, 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
<PAGE>
61
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
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)
<PAGE>
62
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.
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
<PAGE>
63
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
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 Debt Securities of such series delivered to the Company and the
<PAGE>
64
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.
(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
<PAGE>
65
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 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
<PAGE>
66
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).
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
<PAGE>
67
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 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:
<PAGE>
68
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;
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
<PAGE>
69
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.
(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 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.
<PAGE>
70
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 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.
(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
<PAGE>
71
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 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.
<PAGE>
72
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 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 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
<PAGE>
73
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
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;
<PAGE>
74
(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.
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
<PAGE>
75
Company and its counsel. The Company may establish a record date for the
determination of Holders of Registered Securities entitled to vote at any such
meeting.
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 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
<PAGE>
76
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 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
<PAGE>
77
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
(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 complies 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 Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities.
ARTICLE XI
SUPPLEMENTAL INDENTURES
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:
<PAGE>
78
(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 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
<PAGE>
79
(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
(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
<PAGE>
80
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 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); or
(4) reduce the amount of the principal of a Dual Currency Security
that would be due and payable upon a declaration of the acceleration of
the Maturity thereof pursuant to Section 5.2.
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
<PAGE>
81
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 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
<PAGE>
82
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 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
<PAGE>
83
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;
(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
<PAGE>
84
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 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 following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable
<PAGE>
85
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 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
<PAGE>
86
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 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;
(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
<PAGE>
87
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.
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
<PAGE>
88
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
(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.
<PAGE>
89
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
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 complying with the Trust Indenture Act 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, if so
specified pursuant to Section 3.1, with any 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
<PAGE>
90
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.
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) an Opinion of Counsel to such effect based on
such statement of facts.
<PAGE>
91
(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 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
<PAGE>
92
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 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
<PAGE>
93
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.
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 any 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
<PAGE>
94
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 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.
<PAGE>
95
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,
(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 13.6 Deposit of Redemption Price.
<PAGE>
96
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 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
<PAGE>
97
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 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.
<PAGE>
98
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.
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, whether or not cancelled pursuant to Section 3.8, or credit Debt
Securities which have been converted pursuant to Article 16, 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.
<PAGE>
99
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 or 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 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 funds payable to the Company pursuant to the last paragraph of
Section 12.4 from 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
<PAGE>
100
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.
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
<PAGE>
101
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 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
<PAGE>
102
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 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 all conditions precedent herein provided for
relating to the defeasance contemplated in this Section have been complied
with and 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
<PAGE>
103
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, 15.3 and Article Sixteen 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 timely
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 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.
<PAGE>
104
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
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
<PAGE>
105
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 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 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
<PAGE>
106
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:
(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
<PAGE>
107
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
(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
<PAGE>
108
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 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
<PAGE>
109
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 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 Officers' 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 which are
convertible into Common Stock pursuant to this Article Sixteen 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 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
<PAGE>
110
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 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. 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 which are convertible into Common Stock
pursuant to this Article Sixteen 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
<PAGE>
111
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
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
then, 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
which are convertible into Common Stock pursuant to this Article Sixteen, 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
<PAGE>
112
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.
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
<PAGE>
113
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, 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, including funds deposited with the Conversion Agent under
Section 16.2 by a Holder, 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.
<PAGE>
114
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
<PAGE>
STATE OF )
------------------
) ss:
COUNTY OF )
-----------------
On the ______________ day of March, 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 March, 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
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
<PAGE>
2
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 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 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 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) 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
<PAGE>
2
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]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euro-clear System] [CEDEL, S.A.]
By:
------------------------------------
<PAGE>
[Form of Face of Senior Floating Rate Note]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR BY ANY OTHER GOVERNMENT AGENCY.
CUSIP NO.
REGISTERED NO. FLR
BARNETT BANKS, INC.
MEDIUM-TERM FLOATING RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
[INCLUDE LEGEND IF THIS IS A GLOBAL NOTE ---
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER (OTHER THAN A TRANSFER
OF THIS SECURITY 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) MAY BE REGISTERED, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS
NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
INTEREST RATE BASIS: INDEX MATURITY: SPECIFIED CURRENCY:
(if other than U.S. dollars)
REDEEMABLE ON OR AFTER
(AT OPTION OF COMPANY): SPREAD MULTIPLIER: SPREAD: +
-
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
<PAGE>
2
EXCHANGE RATE AGENT INITIAL REDEMPTION INITIAL RESET PERIOD:
(Only applicable if PERCENTAGE:
Specified Currency is
other than U.S. Dollars)
CALCULATION AGENT: INTEREST RESET DATE:
INITIAL DATE ON WHICH THIS ALTERNATIVE RATE EVENT
NOTE IS REPAYABLE AT THE SPREAD:
OPTION OF THE HOLDER:
INITIAL REPAYMENT PERCENTAGE:
ANNUAL REPAYMENT
PERCENTAGE REDUCTION:
INTEREST PAYMENT DATES: ANNUAL REDEMPTION
PERCENTAGE
REDUCTION:
CALCULATION DATES: AUTHORIZED
DENOMINATIONS:
(Only applicable
if Specified
Currency is other
than U.S.dollars)
INTEREST DETERMINATION
DATES:
BARNETT BANKS, INC., a corporation duly organized and existing under
the laws of the State of Florida (herein called the "Company"), for value
received, hereby promises to pay to ____________________________, or registered
assigns, the principal sum of __________________________________________ (any
coin or currency other than U.S. dollars being hereinafter referred to as a
"Specified Currency"), on the Maturity Date specified above, or if such date is
not a Business Day, the next succeeding Business Day (the "Maturity Date"), in
such coin or currency specified above as at the time of payment shall be legal
tender for the payment of public and private debts, and to pay interest
commencing with the Original Issue Date specified above or from and including
the most recent Interest Payment Date to which interest has been duly paid or
provided for monthly, quarterly, semi-annually or annually as specified above
under "Interest Payment Period," on the Interest Payment Dates specified above
and at Maturity, on said principal sum, in like
<PAGE>
3
coin or currency, at a rate per annum equal to the Initial Interest Rate
specified above until the first Interest Reset Date specified above following
the Original Issue Date specified above and thereafter at a rate per annum
determined in accordance with the provisions on the reverse hereof under the
heading "Determination of Interest Rate Per Annum for Prime Rate Notes,"
"Determination of Interest Rate Per Annum for LIBOR Notes," "Determination of
Interest Rate Per Annum for Treasury Rate Notes," "Determination of Interest
Rate Per Annum for Commercial Paper Notes," "Determination of Interest Rate Per
Annum for CD Rate Notes," "Determination of Interest Rate Per Annum for Federal
Funds Rate Notes," "Determination of Interest Rate Per Annum for CMT Rate
Notes," "Determination of Interest Rate Per Annum for 11th District Cost of
Funds Rate Notes," or "Determination of Interest Rate Per Annum for J.J. Kenny
Rate Notes," depending upon whether the Interest Rate Basis is Prime Rate,
LIBOR, Treasury Rate, Commercial Paper Rate, CD Rate, Federal Funds Rate, CMT
Rate, 11th District Cost of Funds Rate or J.J. Kenny Rate, as specified above;
PROVIDED, HOWEVER, that if any Interest Payment Date specified above would
otherwise fall on a day that is not a Business Day (as defined herein), such
Interest Payment Date will be the following day that is a Business Day, except
that in the event that the Interest Rate Basis for this Note is LIBOR, if such
day falls in the next calendar month, such Interest Payment Date will be the
immediately preceding day that is a Business Day; PROVIDED, FURTHER, that
the Company will make such payments in a Specified Currency in the Specified
Currency specified above in amounts
<PAGE>
4
determined as set forth on the reverse hereof; PROVIDED, HOWEVER, that payments
of principal (and premium, if any) and interest on Notes denominated in other
than U.S. dollars will nevertheless be made in U.S. dollars (i) at the election
of the Holder as provided herein and (ii) at the election of the Company in the
case of imposition of exchange controls or other circumstances beyond the
control of the Company as provided herein. Interest on this Note shall accrue
(a) if the rate at which interest on this Note is payable shall be adjusted
monthly, quarterly, semi-annually or annually, as specified above under
"Interest Rate Reset Period" and as determined in accordance with the provisions
on the reverse hereof, from the Interest Payment Date next preceding the date of
this Note to which interest has been paid, unless the date hereof is an Interest
Payment Date to which interest has been paid, in which case from the date of
this Note, or unless no interest has been paid on this Note, in which case from
the Original Issue Date specified above, until payment of said principal sum has
been made or duly provided for or (b) if the rate at which interest on this Note
is payable shall be adjusted weekly, as specified above under "Interest Rate
Reset Period" and as determined in accordance with the provisions on the reverse
hereof, from the last date to which interest has been paid, unless the date
hereof is a Record Date through which interest has been paid, in which case from
the day after the date of this Note, or unless no interest has been paid on this
Note, in which case from the Original Issue Date specified above, until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the Original Issue Date is
<PAGE>
5
after any Record Date preceding any Interest Payment Date and before such
Interest Payment Date, interest on this Note shall accrue from such Interest
Payment Date unless the rate at which interest on this Note is payable shall be
adjusted weekly, as provided above under "Interest Rate Reset Period" and as
determined in accordance with the provisions on the reverse hereof, in which
case interest on this Note shall accrue from and including the last date to
which interest has been paid or duly provided for to and including such Record
Date, or, in either case, if no interest has been paid on this Note, from the
Original Issue Date specified above. Subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, the interest so payable on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the Record Date next preceding such
Interest Payment Date, and interest payable at Maturity will be paid to the
Person to whom said principal sum is payable; PROVIDED, HOWEVER, that the
first payment of interest on a Note originally issued between a Record Date and
an Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Record Date to the registered owner on such next succeeding
Record Date. "Record Date" shall mean the fifteenth day (whether or not a
Business Day) prior to any Interest Payment Date. "Business Day" shall mean any
day other than a Saturday or Sunday which is not a day on which banking
institutions are generally authorized or required by law or regulation to close
in The City of New York and (a) in the event that the Interest Rate Basis for
this Note is LIBOR, in the City of London, (b) in the
<PAGE>
6
event that this Note is denominated in a Specified Currency (other than European
Currency Units ("ECUs")), in the financial center of the country issuing the
Specified Currency and (c) if this Note is denominated in ECUs, in the financial
center of each country that issues a component currency of the ECU and that is
not a non-ECU settlement day. "London Banking Day" shall mean any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity,
redemption or repayment) payable in U.S. dollars will be made by check mailed to
the Person entitled thereto at his last address as it appears on the Security
Register or, at the option of the Company, by wire transfer to an account
maintained by such Person with a bank located in the United States.
Notwithstanding the foregoing, a Holder of $10,000,000 or more in aggregate
principal amount of Notes of like tenor and terms (or the Holder of the
equivalent thereof in a Specified Currency other U.S. dollars) shall be entitled
to receive interest payments (other than at Maturity, redemption or repayment)
by wire transfer in immediately available funds, but only if appropriate
instructions have been received in writing by the Paying Agent on or prior to
the applicable Record Date for such payment of interest. Payment of the
principal of and any premium and interest on this Note due to the Holder hereof
at Maturity payable in U.S. dollars will be made in immediately available funds
upon presentation of this Note at the corporate trust office of The First
National Bank of Chicago, as paying
<PAGE>
7
agent ("Paying Agent"), in New York, New York, provided that this Note is
presented to the Paying Agent in time for the Paying Agent to make such payments
in such funds in accordance with its normal procedures.
Payments of principal, premium, if any, and interest to be made in a
Specified Currency will be paid by wire transfer of immediately available funds
to a designated account maintained with a bank located in the country issuing
the Specified Currency as shall have been designated at least 15 calendar days
prior to the payment date by the Holder of this Note. If such wire transfer
instructions are not so provided, payments of principal of, premium, if any, and
interest on this Note will be made by check drawn upon a bank located in the
financial center in the country issuing the Specified Currency (or, if this Note
is denominated in ECUs, a bank located in the financial center of any country
that issues a component currency).
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Trustee at its corporate trust
office in Chicago, Illinois and, unless revoked by written notice to the Paying
Agent received by the Paying Agent on or prior to the Record Date immediately
preceding the applicable Interest Payment Date or the fifteenth day preceding
Maturity, shall remain in effect with respect to any further payments with
respect to this Note payable to such Holder.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon payments
<PAGE>
8
will be borne by the Holder or Holders of this Note in respect of which payments
are made.
If the principal of and any premium or interest on, this Note is
payable in a Specified Currency (other than ECUs) and such Specified Currency is
not available due to the imposition of exchange controls or other circumstances
beyond the control of the Company or is no longer used by the government of the
country issuing such currency or for the settlement of transactions by public
institutions within the international banking community, the Company will be
entitled to satisfy its obligations to the Holder of this Note by making payment
in U.S. dollars on the basis of the most recently available exchange rate as
specified by the Exchange Rate Agent as provided herein. If the principal of
and any premium and interest on this Note is payable in ECUs and ECUs are not
available due to the imposition of exchange controls or other circumstances
beyond the Company's control or are no longer used in the European Monetary
System, then the Company will be entitled to satisfy its obligations under this
Note by making payments in U.S. dollars on the basis of the most recently
available exchange rate as specified by the Company or its agent as provided
herein.
Any Interest Payment Date which is not a Business Day shall be the
next succeeding Business Day with the same force and effect as if payment had
been made on the due date and no interest shall accrue for the period from and
after such date; PROVIDED, HOWEVER, that if the Interest Rate Basis of this
Note is LIBOR and if such Business Day is in the next succeeding
<PAGE>
9
calendar month, such Interest Payment Date shall be the immediately preceding
day which is a Business Day.
Any payment of principal, premium, if any, or interest on the Maturity
of this Note which is due on any day which is not a Business Day need not be
made on such day, but may be made on the next succeeding Business Day with the
same force and effect as if made on the due date and no interest shall accrue
for the period from and after such date.
Additional provisions of this Note are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to on the reverse hereof.
<PAGE>
10
IN WITNESS WHEREOF, BARNETT BANKS, INC. has caused this instrument
to be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION BARNETT BANKS, INC.
This Note is one of a designated series
of Securities described in the Indenture
referred to on the reverse hereof By:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee,
Attest:
By:
Authorized Officer Secretary
[SEAL]
<PAGE>
11
[Form of Reverse of Senior Floating Rate Note]
BARNETT BANKS, INC.
MEDIUM-TERM FLOATING RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of Medium-Term Notes,
Series D of the Company (hereinafter called the "Notes"), issued or to be issued
in one or more series under and pursuant to an indenture, dated as of March 16,
1995 (as supplemented or amended from time to time, the "Indenture"), duly
executed and delivered by the Company to The First National Bank of Chicago, as
Trustee (hereinafter called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof, limited in aggregate principal
amount to $500,000,000.
Unless otherwise specified on the face hereof, the rate of interest
on this Note will be reset daily, weekly, monthly, quarterly, semiannually or
annually (such period being the "Interest Reset Period", and the first day of
each Interest Reset Period being an "Interest Reset Date"). Unless otherwise
specified on the face hereof, the Interest Reset Date will be, in case this Note
resets daily, each Business Day; in case this Note resets weekly (unless the
Treasury Rate is specified as the Interest Rate Basis on the face hereof), the
Wednesday of each
<PAGE>
12
week; in case of Treasury Rate Notes which reset weekly, the Tuesday of each
week, except as provided below; in case this Note resets monthly (other than
11th District Cost of Funds Rate Notes), the third Wednesday of each month; in
the case of 11th District Cost of Funds Rate Notes which reset monthly, the
first calendar day of each month; in case this Note resets quarterly, the third
Wednesday of March, June, September and December; in case this Note resets
semiannually, the third Wednesday of two months of each year, specified on the
face hereof; and in case this Note resets annually, the third Wednesday of one
month of each year, specified on the face hereof; PROVIDED, HOWEVER, that
the interest rate in effect from the date of issue to the first Interest Reset
Date shall be the Initial Interest Rate specified on the face hereof. If any
Interest Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next succeeding Business Day,
except that if the Interest Rate Basis of this Note is LIBOR and if such
Business Day is the next succeeding calendar month, such Interest Reset Date
shall be the next preceding Business Day. Subject to applicable provisions of
law and except as specified herein, on each Interest Reset Date, the rate of
interest on this Note shall be the rate determined with respect to the Interest
Determination Date next preceding such Interest Reset Date in accordance with
the provisions of the applicable heading below.
DETERMINATION OF INTEREST RATE PER ANNUM FOR PRIME RATE NOTES. If
the Interest Rate Basis specified on the face hereof is Prime Rate, the interest
rate per annum determined with respect to any Interest Determination Date shall
equal the rate,
<PAGE>
13
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by multiplication by the Spread Multiplier, if any, specified on
the face hereof, set forth in "Statistical Release H.15(519), Selected Interest
Rates", published by the Board of Governors of the Federal Reserve System or any
successor publication published by the Board of Governors of the Federal Reserve
System ("H.15(519)") under the heading "Bank Prime Loan". In the event that
such rate is not published prior to 9:00 A.M., New York City time, on the
relevant Calculation Date, then the Prime Rate with respect to such Interest
Determination Date will be the arithmetic mean (adjusted or multiplied as
described above) of the rates of interest publicly announced by each bank that
appears on the display designated as page "NYMF" on the Reuters Monitor Money
Rates Service (or such other page as may replace the NYMF page on that service
for the purpose of displaying prime rates or base lending rates of major United
States banks) ("Reuters Screen NYMF Page") as such bank's prime rate or base
lending rate as in effect for such Interest Determination Date as quoted on the
Reuters Screen NYMF Page on such Interest Determination Date. If fewer than
four such rates appear on the Reuters Screen NYMF Page on such Interest
Determination Date, the Prime Rate will be the arithmetic mean (adjusted or
multiplied as described above) of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Interest Determination Date by at least two of three major
money center banks in The City of New York selected by the Calculation Agent
from which quotations are requested. If fewer
<PAGE>
14
than two quotations are provided, the Prime Rate shall be determined as the
arithmetic mean (adjusted or multiplied as described above) on the basis of the
prime rates in The City of New York by the appropriate number of substitute
banks or trust companies organized and doing business under the laws of the
United States, or any State thereof, in each case having total equity capital of
at least U.S.$500 million and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent to quote such rate
or rates. If in any month or two consecutive months the Prime Rate is not
published in H.15(519) and the banks or trust companies selected as aforesaid
are not quoting as mentioned in the preceding sentence, the "Prime Rate" for
such Interest Reset Period will be the same as the Prime Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). If this failure continues over three
or more consecutive months, the Prime Rate for each succeeding Interest
Determination Date until Maturity, redemption or repayment of this Note or, if
earlier, until this failure ceases, shall be LIBOR determined as if such Prime
Rate Notes were LIBOR Notes, and the Spread, if any, shall be the number of
basis points specified in the applicable Pricing Supplement as the "Alternative
Rate Event Spread."
DETERMINATION OF INTEREST RATE PER ANNUM FOR LIBOR NOTES. If the
Interest Rate Basis specified on the face hereof is LIBOR, the interest rate per
annum determined with respect to any Interest Determination Date shall equal
[the rate for deposits in U.S. dollars having the Index Maturity specified on
<PAGE>
15
the face hereof which appears on the Telerate Page 3750 (as defined below) as of
11:00 a.m., London time, on such Interest Determination Date ("LIBOR-Telerate")]
[the arithmetic mean of the offered rates for deposits in U.S. dollars having
the Index Maturity specified on the face hereof which appear on the Reuters
Screen LIBO Page (as defined below) as of 11:00 a.m., London time, on such
Interest Determination Date, provided that at least two such offered rates
appear on the Reuters Screen LIBO Page ("LIBO-Reuters")].
If on any Interest Determination Date [where LIBOR-Telerate applies,
the rate for deposits in U.S. dollars having the applicable Index Maturity does
not appear on the Telerate Page 3750 as specified above] [where LIBOR-Reuters
applies, fewer than two offered rates for deposits in U.S. dollars having the
applicable Index Maturity appear on the Reuters Screen LIBO Page as specified
above], LIBOR will be determined on the basis of the rates at which deposits in
U.S. dollars are offered by four major banks in the London interbank market
selected by the Calculation Agent at approximately 11:00 a.m., London time, on
such Interest Determination Date to prime banks in the London interbank market
having the Index Maturity specified on the face hereof and in a principal amount
equal to an amount that is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each of such banks to provide a quotation of its rate. If at least
two such quotations are provided, the rate in respect of such Interest
Determination Date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided, LIBOR in respect of
<PAGE>
16
such Interest Determination Date will be the arithmetic mean of the rates quoted
by three major banks in The City of New York, selected by the Calculation Agent,
at approximately 11:00 a.m., New York City time, on such Interest Determination
Date for loans in U.S. dollars to leading European banks, having the Index
Maturity specified on the face hereof and in a principal amount equal to an
amount that is representative for a single transaction in such market at such
time; PROVIDED, HOWEVER, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as described in this sentence, LIBOR with
respect to such Interest Determination Date shall be the same as LIBOR for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
"Telerate Page 3750" means the display page designated as page 3750
on the Dow Jones Telerate Service (or such other page as may replace page 3750
on that service for the purpose of displaying London interbank offered rates).
"Reuters Screen LIBO Page" means the display page designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates).
DETERMINATION OF INTEREST RATE PER ANNUM FOR TREASURY RATE NOTES.
If the Interest Rate Basis specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date shall equal the rate for the auction held on such date of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
<PAGE>
17
specified on the face hereof as published in H.15(519), under the heading
"Treasury Bills-auction average (investment)" or, if not so published by 9:00
A.M., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination Date
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise reported by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof.
In the event that the results of the auctions of Treasury Bills having the Index
Maturity specified on the face hereof are not published or announced as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no such
auction is held on such Interest Determination Date, then the interest rate per
annum with respect to such Calculation Date shall be a yield to Maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean (adjusted or
multiplied as described above) of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers in
The City of New York selected by the Calculation Agent for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity specified on the
face hereof, adjusted or multiplied as described above; PROVIDED, HOWEVER,
that if the dealers selected as aforesaid by the
<PAGE>
18
Calculation Agent are not quoting bid rates as described in this sentence, the
interest rate per annum hereon with respect to such Interest Determination Date
shall be the same as the Treasury Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the Initial
Interest Rate).
DETERMINATION OF INTEREST RATE PER ANNUM FOR COMMERCIAL PAPER RATE
NOTES. If the Interest Rate Basis specified on the face hereof is Commercial
Paper Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal (a) the Money Market Yield (as defined herein) of
the rate on such Interest Determination Date for commercial paper having the
Index Maturity specified on the face hereof, (i) as such rate is published in
H.15(519), under the heading "Commercial Paper," or (ii) if such rate is not
published on or prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, as published by the Federal
Reserve Bank of New York in its daily statistical release, "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite Quotations"), under the
heading "Commercial Paper," or (b) if by 3:00 P.M., New York City time, on such
Calculation Date, such rate is not published in either of such publications, the
Money Market Yield of the arithmetic mean of the offered rates, as of 11:00
A.M., New York City time, on such Interest Determination Date, of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent for commercial paper having the Index Maturity specified on the face
hereof placed for industrial issuers whose bond rating is "AA", or the
equivalent,
<PAGE>
19
from a nationally recognized rating agency, in each of the above cases adjusted
by the addition or subtraction of the Spread, if any, specified on the face
hereof, or by multiplication by the Spread Multiplier, if any, specified on the
face hereof; PROVIDED, HOWEVER, that if fewer than three such dealers are
quoting as described above, the interest rate per annum hereon with respect to
such Interest Determination Date will be the same as the Commercial Paper Rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 X D
---------------------------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF INTEREST RATE PER ANNUM FOR CD RATE NOTES. If
the Interest Rate Basis specified on the face hereof is CD Rate, the interest
rate per annum determined with respect to any Interest Determination Date shall
equal the rate, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof for negotiable certificates of deposit having
the specified Index Maturity as published in Release H.15(519) under the heading
"CDs (Secondary Market)," in the event that such rate is not published prior to
<PAGE>
20
9:00 A.M., New York City time, on the relevant Calculation Date, relating to
such Interest Determination Date, then the CD Rate with respect to such Interest
Determination Date shall be the rate (adjusted or multiplied as described above)
for negotiable certificates of deposit having the Index Maturity specified on
the face hereof as published in Composite Quotations under the heading
"Certificates of Deposit;" if by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, the CD Rate with respect to such Interest Determination Date shall
be the arithmetic mean (adjusted or multiplied as described above) of the
secondary market offered rates, as of 10:00 A.M., New York City time, on such
Interest Determination Date, of three leading nonbank dealers of negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money center banks of the highest credit standing in the market for negotiable
certificates of deposit with a remaining maturity closest to the Index Maturity
specified on the face hereof in a denomination of U.S.$5,000,000; PROVIDED,
HOWEVER, that, if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as mentioned in this sentence, the CD Rate with
respect to such Interest Reset Period will be the same as the CD Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
DETERMINATION OF INTEREST RATE PER ANNUM FOR FEDERAL FUNDS RATE
NOTES. If the Interest Rate Basis specified on the
<PAGE>
21
face hereof is Federal Funds Rate, the interest rate per annum determined with
respect to any Interest Determination Date shall equal the rate, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof, on the Interest Determination Date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that such
rate is not published prior to 9:00 A.M., New York City time, on the relevant
Calculation Date pertaining to such Interest Determination Date, then the
Federal Funds Rate with respect to such Interest Determination Date shall be the
rate (adjusted or multiplied as described above) on such Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If by 3:00 P.M., New York City time, on such Calculation
Date such rate is not published in H.15(519) or Composite Quotations, the
Federal Funds Rate with respect to such Interest Determination Date shall be the
arithmetic mean (adjusted or multiplied as described above) of the rates, as of
11:00 A.M., New York City time, on such Interest Determination Date, for the
last transaction in overnight Federal funds arranged by three leading brokers of
Federal funds transactions in The City of New York selected by the Calculation
Agent; PROVIDED, HOWEVER, that if fewer than three brokers selected as
aforesaid by the Calculation Agent are quoting as mentioned in this sentence,
the Federal Funds Rate with respect to such Interest Determination Date shall be
the same as the Federal Funds Rate for the
<PAGE>
22
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
DETERMINATION OF INTEREST RATE PER ANNUM FOR J.J. KENNY RATE NOTES
If the Interest Rate Basis specified on the face hereof is J.J.
Kenny Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal the rate, adjusted by the addition or subtraction
of the Spread, if any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof, on the Interest
Determination Date for the high-grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index is, and shall be, based upon 30-day yield evaluations
at par of bonds, the interest of which is exempt from Federal income taxation
under the Internal Revenue Code of 1986, as amended (the "Code"), of not less
than five high-grade component issuers selected by Kenny which shall include,
without limitation, issuers of general obligation bonds. The specific issuers
included among the component issuers may be changed from time to time by Kenny
in its discretion. The bonds on which the Weekly Index is based shall not
include any bonds on which the interest is subject to a minimum tax or similar
tax under the Code, unless all tax-exempt bonds are subject to such tax. In the
event Kenny ceases to make available such Weekly Index, a successor indexing
agent will be selected by the Calculation Agent, such index to reflect the
prevailing rate for bonds rated in the highest short-term rating category by
Moody's Investors Service, Inc. and Standard & Poor's
<PAGE>
23
Ratings Group in respect of issuers most closely resembling the high-grade
component issuers selected by Kenny for its Weekly Index, the interest on which
is (A) variable on a weekly basis, (B) exempt from Federal income taxation under
the Code and (C) not subject to a minimum tax or similar tax under the Code,
unless all tax-exempt bonds are subject to such tax. If such successor indexing
agent is not available, the rate for any Interest Determination Date with
respect to J.J. Kenny Notes shall be 67% of the rate determined if the Treasury
Rate option had been originally selected. The Calculation Agent shall calculate
the J.J. Kenny Rate in accordance with the foregoing. At the request of a
Holder of a Floating Rate Note bearing interest at the J.J. Kenny Rate, the
Calculation Agent will provide such Holder with the interest rate that will
become effective as of the next Interest Reset Date.
DETERMINATION OF INTEREST RATE PER ANNUM FOR 11TH DISTRICT COST OF FUNDS RATE
NOTES
If the Interest Rate Basis specified on the face hereof is 11th
District Cost of Funds Rate, the interest rate per annum determined with respect
to any Interest Determination Date shall equal the rate, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof, on the Interest Determination Date for the monthly weighted average cost
of funds for the calendar month immediately preceding the month in which such
Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such
Interest
<PAGE>
24
Determination Date. If such rate does not appear on Telerate Page 7058 on any
related Interest Determination Date, the 11th District Cost of Funds Rate for
such Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the 11th Federal Home Loan Bank District
that was most recently announced (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month immediately preceding the date of such
announcement. If the FHLB of San Francisco fails to announce such rate for the
calendar month immediately preceding such Interest Determination Date, then the
11th District Cost of Funds Rate determined as of such Interest Determination
Date will be the 11th District Cost of Funds Rate in effect on such Interest
Determination Date.
DETERMINATION OF INTEREST RATE PER ANNUM FOR CMT RATE NOTES
If the Interest Rate Basis specified on the face hereof is CMT Rate,
the interest rate per annum determined with respect to any Interest
Determination Date shall equal the rate, adjusted by the addition or subtraction
of the Spread, if any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof, on the Interest
Determination Date displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such Interest Determination
Date and (ii) if the Designated CMT Telerate Page is 7052, the
<PAGE>
25
week, or the month, as applicable, ended immediately preceding the week in which
the related Interest Determination Date occurs. If such rate is no longer
displayed on the relevant page, or if not displayed by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the Interest Determination Date with respect
to such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M., New York City time, on the
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in the City of New York
<PAGE>
26
(which may include an Agent or its affiliates) selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest), and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes"), with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated;
<PAGE>
27
PROVIDED, HOWEVER, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate will be the CMT
Rate in effect on such Interest Determination Date. If two Treasury Notes with
an original maturity as described in the third preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the quotes
for the Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in the applicable Pricing Supplement (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
Notwithstanding the foregoing, the interest rate per annum hereon
shall not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the foregoing
on or before each Interest Calculation Date. The Calculation Agent's
determination of the interest rate on this Note shall be final
<PAGE>
28
and binding on the Company and the Holder of this Note in the absence of
manifest error.
All percentages used in or resulting from any calculation of the rate
of interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward, and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent, with one-half cent
rounded upward.
The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date with respect
to this Note.
Interest payments hereon will include interest accrued from, and
including, the date of issue or from, and including the last date to which
interest has been paid to or duly provided for, but excluding the applicable
Interest Payment Date. Accrued interest shall be calculated by multiplying the
face amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factors calculated for each day in the
period for which interest is being paid. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed by dividing the
interest rate per annum applicable to such day by 360 if the
<PAGE>
29
Interest Rate Basis specified on the face hereof is Prime Rate, LIBOR,
Commercial Paper Rate, CD Rate, Federal Funds Rate, 11th District Cost of Funds
Rate or J.J. Kenny Rate or by the actual number of days in the year if the
Interest Rate Basis specified on the face hereof is Treasury Rate or CMT Rate.
The "Interest Determination Date" pertaining to an Interest Reset Date
for CD Rate Notes, Commercial Paper Rate Notes, Federal Funds Rate Notes, CMT
Rate Notes, Prime Rate Notes and J.J. Kenny Rate Notes will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note will be the last working day of the month immediately
preceding each Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index. The Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Note will be
the second London Banking Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a Treasury Rate Note
will be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned; PROVIDED, HOWEVER, that if, as
the result of a legal holiday, an auction is so held on the Friday preceding the
Interest Reset Date, such Friday will be the Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week;
PROVIDED, FURTHER, that if an auction falls on a day that is an Interest
Reset Date, such Interest Reset Date will be the next following Business Day.
<PAGE>
30
The "Calculation Date" pertaining to an Interest Determination Date
will be the earlier of (i) the tenth calendar day after such Interest
Determination Date or the next succeeding Record Date after such Interest
Determination Date or, if either such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day preceding the applicable
Interest Payment Date or date of maturity, as the case may be.
Unless otherwise specified on the face hereof, if this Note is
denominated in a Specified Currency, a Holder of this Note who, in accordance
with the provisions of this Note, elects to receive payments in U.S. dollars
will receive payments of principal, premium and interest in U.S. dollars
delivered with reference to the highest bid quotation in The City of New York
received by the Exchange Rate Agent as of 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent unless the
Exchange Rate Agent solicited the sale of this Note on behalf of the Company)
selected by the Exchange Rate Agent for the purchase by the quoting dealer of
the Specified Currency for U.S. dollars for settlement on such payment date, in
an amount equal to the aggregate amount of the Specified Currency payable to all
Holders of Notes electing to receive U.S. dollar payments on such payment date
and at which the applicable dealer commits to execute a contract. If three such
bid quotations are not available, payments will be made in the Specified
Currency. All currency exchange costs associated with any payments in U.S.
dollars will
<PAGE>
31
be borne by the Holder of the Note by deductions from such payments.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency and, due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Specified Currency
is not available or is no longer used by the government of the country issuing
such currency or for the settlement of transactions by public institutions
within the international banking community at the time of any scheduled payment
of principal, premium or interest to be made in the Specified Currency, then the
Company shall be entitled to satisfy its obligations hereunder by making such
payment in U.S. dollars. Any such payment made in U.S. dollars pursuant to the
preceding sentence shall be made on the basis of the noon buying rate in The
City of New York for cable transfers of the Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the second Business Day prior to such payment, or if such Market
Exchange Rate is not then available, on the basis of the most recently available
Market Exchange Rate. Any payment under such circumstances in U.S. dollars
where required payment is in a Specified Currency will not constitute a default
under the Indenture.
If the Specified Currency is in ECUs and ECUs are unavailable due to
the imposition of exchange controls or other circumstances beyond the Company's
control or are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars until ECUs are again
<PAGE>
32
available or so used. The amount of each payment in U.S. dollars shall be
computed on the basis of the equivalent of the ECU in U.S. dollars, determined
as described below, as of the second Business Day prior to the date on which
such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Company or such agent on the basis of the most recently
available Market Exchange Rate for such Components.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
<PAGE>
33
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
If so provided on the face of this Note, this Note may be redeemed by
the Company on and after the date so indicated on the face hereof. On and after
the date, if any, from which this Note may be redeemed, this Note may be
redeemed in whole or in part, at the option of the Company, at a redemption
price equal
<PAGE>
34
to the product of the principal amount of this Note to be redeemed multiplied by
the Redemption Percentage. The Redemption Percentage shall initially equal the
Initial Redemption Percentage specified on the face of this Note, and shall
decline at each anniversary of the initial date that this Note is redeemable by
the amount of the Annual Redemption Percentage Reduction specified on the face
of this Note, until the Redemption Percentage is equal to 100%.
If so provided on the face of this Note, this Note will be repayable
in whole or in part in increments of $1,000 or, in the case of non-U.S. dollar
denominated Notes, of an amount equal to the integral multiples specified on the
face hereof under Authorized Denominations (or, if no such reference is made, an
amount equal to the minimum Authorized Denomination) provided that the remaining
principal amount of any Note surrendered for partial repayment shall be at least
$1,000 or, in the case of non-U.S. dollar denominated Notes, the minimum
Authorized Denomination specified on the face hereof, on any Business Day on or
after the Initial Date on which the Note is repayable at the option of the
Holder specified on the face hereof, at the option of the Holder, at the
repayment amount specified on the face hereof, plus accrued interest, if any, to
the repayment date. In order for the exercise of the option to be effective and
the Notes to be repaid, the Company must receive at the applicable address of
the Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Note, on or
before the fifteenth, but not earlier than the thirtieth day, or, if such day is
not a
<PAGE>
35
Business Day, the next succeeding Business Day, prior to the repayment date,
either (i) this Note, with the form below entitled "Option to Elect Repayment"
duly completed, or (ii) a telegram, telex, facsimile transmission, or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc., or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Note, (b) the principal amount of this Note and the amount of
this Note to be repaid, (c) the certificate number or a description of the tenor
and terms of this Note, (d) a statement that the option to elect repayment is
being exercised thereby, and (e) a guarantee stating that the Company will
receive this Note, with the form below entitled "Option to Elect Repayment" duly
completed, not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (and this Note and form duly completed
are received by the Company by such fifth Business Day). Any such election
shall be irrevocable. The address to which such deliveries are to be made is
The First National Bank of Chicago, Attention: Corporate Services Trust
Division, One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126 (or
at such other places as the Company shall notify the Holders of the Notes). All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company, whose
determination will be final and binding.
The Notes are issuable in global or definitive form without coupons
in denominations of $1,000 and integral multiples
<PAGE>
36
of $1,000 in excess thereof or, if the Note is denominated in a Specified
Currency, in the denominations specified on the face hereof. Upon due
presentment for registration of transfer of this Note at the office or agency of
the Company in any place where the principal of, premium, if any, and interest
on this Note are payable, a new Note or Notes in authorized denominations in
U.S. dollars or the Specified Currency, as the case may be, for an equal
aggregate principal amount and like tenor will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture and to
the limitations described below if applicable, without charge except for any tax
or other governmental charge imposed in connection therewith.
If this Note is a Global Note (as specified on the face hereof), this
Note is exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form or (z) an Event of Default, or an event which with notice or
lapse of time would be an Event of Default, with respect to the Notes
represented hereby has occurred and is continuing. If this Note is exchangeable
pursuant to the preceding sentence, it shall be exchangeable for definitive
Notes in registered form, bearing interest (if any) at the same rate or pursuant
to the same formula, having the same date of issuance, redemption provisions,
<PAGE>
37
if any, Specified Currency, Stated Maturity and other terms and of differing
denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the places, at the respective times, at the rate and in
the currency herein prescribed.
The Company, the Trustee and any paying agent may deem and treat the
registered Holder hereof as the absolute owner of this Note at such Holder's
address as it appears on the Security Register of the Company as kept by the
Trustee or duly authorized agent of the Company (whether or not this Note shall
be overdue), for the purpose of receiving payment of or on account hereof and
for all other purposes, and neither the Company nor the Trustee nor any paying
agent shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums
paid, effectually satisfy and discharge liability for moneys payable on this
Note.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
<PAGE>
38
---------------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at _____________________________
_____________________________________________________________________________
(please print or typewrite name and address of the undersigned).
For this Note to be repaid the Company must receive at the applicable
address of the Paying Agent set forth above or at such other place or places of
which the Company shall from time to time notify the Holder of the within Note,
on or before the fifteenth, but not earlier than the thirtieth day, or, if such
day is not a Business Day, the next succeeding Business Day, prior to the
repayment date, (i) this Note, with this "Option to Elect Repayment" form duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address, and telephone number of
the Holder of the Note, (b) the principal amount of the Note and the amount of
the Note to be repaid, (c) a certificate number or a description of the tenor
and terms of the Note, (d) a statement that the option to elect repayment is
being
<PAGE>
39
exercised thereby, and (d) a guarantee stating that the Note to be repaid with
the form entitled "Option to Elect Repayment" on the reverse of the Note duly
completed will be received by the Company not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter (and
such Note and form duly completed are received by the Company by such fifth
Business Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples referred to on the face hereof under
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination)) which the Holder elects to have repaid:
____________________________; and specify the denomination or denominations
(which shall be $1,000 or an integral multiple of $1,000 in excess thereof or,
if the Note is denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion of
the within Note not being repaid
<PAGE>
40
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid):
___________________
Date:__________________________ ____________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the name
as written upon the face of the Note in every
particular without alteration or enlargement
or any other change whatsoever.
_______________________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT --_____Custodian____________
TEN ENT-- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of Under Uniform Gifts to Minors Act
survivorship and not as tenants
in common ___________________________________
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
41
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
the within Note and does hereby irrevocably constitute and appoint
________________________________________________________________________________
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
Dated: ________________________
____________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
[Form of Face of Senior Fixed Rate Note]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR BY ANY OTHER GOVERNMENT AGENCY.
CUSIP NO.
REGISTERED NO. FXR
BARNETT BANKS, INC.
MEDIUM-TERM FIXED RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
[INCLUDE LEGEND IF THIS IS A GLOBAL NOTE ---
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER (OTHER THAN A TRANSFER
OF THIS SECURITY 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) MAY BE REGISTERED, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
ORIGINAL ISSUE DATE: INTEREST RATE PER ANNUM: MATURITY DATE:
ISSUE PRICE: % REDEEMABLE ON OR AFTER:
(AT OPTION OF THE SPECIFIED CURRENCY:
COMPANY) (if other than U.S.
dollars)
INITIAL DATE ON WHICH THIS
NOTE IS REPAYABLE AT THE
OPTION OF THE HOLDER:
INITIAL REPAYMENT INITIAL REDEMPTION EXCHANGE RATE AGENT:
PERCENTAGE: PERCENTAGE: (Only applicable if
Specified Currency is
other than U.S. dollars)
<PAGE>
2
ANNUAL REPAYMENT
PERCENTAGE REDUCTION:
ANNUAL REDEMPTION PERCENTAGE REDUCTION: DEFAULT RATE:
(Only applicable if Note
issued at original issue
discount)
AUTHORIZED DENOMINATIONS:
(Only applicable if Specified Currency
is other than U.S. dollars)
INTEREST PAYMENT DATES:
OID DEFAULT AMOUNT:
(Only applicable if Note issued at
original issue discount)
BARNETT BANKS, INC., a corporation duly organized and existing under
the laws of the State of Florida (herein called the "Company"), for value
received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of _____________________ (any coin or
currency other than U.S. dollars being hereinafter referred to as a "Specified
Currency"), on the Maturity Date specified above, or if such date is not a
Business Day (as defined below), the next succeeding Business Day, in such coin
or currency specified above as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest on said principal
sum at the rate per annum (computed on the basis of a 360-day year of twelve
30-day months) shown above, in like coin or currency, from and including the
Original Issue Date specified above or from and including the most recent
Interest Payment Date to which interest has been duly paid or provided for, on
the Interest Payment Date(s) specified above in each year and at Maturity, until
the principal sum hereof has been paid or duly provided for; PROVIDED, HOWEVER,
that the Company will make such payments in a Specified Currency indicated above
in amounts
<PAGE>
3
determined as set forth on the reverse hereof; PROVIDED, HOWEVER, that payments
of principal of, premium, if any, and interest on Notes denominated in a
Specified Currency will nevertheless be made in U.S. dollars (i) at the election
of the Holder as provided herein and (ii) at the election of the Company in the
case of imposition of exchange controls or other circumstances beyond the
control of the Company as provided herein. The first payment of interest on a
Note originally issued and dated between a Record Date (as defined below) and an
Interest Payment Date will be due and payable on the Interest Payment Date
following the next succeeding Record Date to the registered owner on such next
succeeding Record Date. Subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, the interest so payable on any Interest
Payment Date will be paid to the Person in whose name this Note is registered at
the close of business on the fifteenth calendar day (whether or not a Business
Day) next preceding such Interest Payment Date (each such date a "Record Date"),
and interest payable at Maturity will be paid to the Person to whom said
principal sum is payable.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity,
redemption or repayment) payable in U.S. dollars will be paid by check mailed to
the Person entitled thereto at his last address as it appears on the Security
Register or, at the option of the Company, by wire transfer to an account
maintained by such Person with a bank located in the United States.
Notwithstanding the foregoing, a Holder of $10,000,000 or more in aggregate
principal amount of Notes of
<PAGE>
4
like tenor and terms (or the Holder of the equivalent thereof in a Specified
Currency) shall be entitled to receive interest payments (other than at
Maturity, redemption or repayment) by wire transfer in immediately available
funds, but only if appropriate instructions have been received in writing by the
Paying Agent on or prior to the applicable Record Date for such payment of
interest. Payment of the principal of and any premium and interest on this Note
due to the Holder hereof at Maturity payable in U.S. dollars will be paid in
immediately available funds upon presentation of this Note at the corporate
trust office of The First National Bank of Chicago, as paying agent ("Paying
Agent"), in New York, New York, provided that this Note is presented to the
Paying Agent in time for the Paying Agent to make such payments in such funds in
accordance with its normal procedures.
Payments of principal, premium, if any, and interest to be made in a
Specified Currency will be paid by wire transfer of immediately available funds
to a designated account maintained with a bank located in the country issuing
the Specified Currency as shall have been designated at least 15 calendar days
prior to the payment date by the Holder of this Note. If such wire transfer
instructions are not so provided, payments of principal of, premium, if any, and
interest on this Note will be made by check drawn upon a bank located in the
financial center in the country issuing the Specified Currency (or, if this Note
is denominated in European Currency Units ("ECUs"), a bank located in the
financial center of any country that issues a component currency).
<PAGE>
5
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Trustee at its corporate trust
office in Chicago, Illinois and, unless revoked by written notice to the Paying
Agent received by the Paying Agent on or prior to the Record Date immediately
preceding the applicable Interest Payment Date or the fifteenth calendar day
preceding Maturity, shall remain in effect with respect to any further payments
with respect to this Note payable to such Holder.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon payments will be borne by the Holder or Holders
of this Note in respect of which payments are made.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency (other than ECUs) and such Specified Currency is
not available due to the imposition of exchange controls or other circumstances
beyond the control of the Company or is no longer used by the government of the
country issuing such currency or for the settlement of transactions by public
institutions within the international banking community, the Company will be
entitled to satisfy its obligations to the Holder of this Note by making payment
in U.S. dollars on the basis of the most recently available exchange rate as
specified by the Exchange Rate Agent as provided herein. If the principal of
and any premium and interest on this Note is payable in ECUs and ECUs are not
available due to the imposition of exchange controls or other circumstances
beyond the Company's control or
<PAGE>
6
are no longer used in the European Monetary System, then the Company will be
entitled to satisfy its obligations under this Note by making payments in U.S.
dollars on the basis of the most recently available exchange rate as specified
by the Company or its agent as provided herein.
Any Interest Payment Date which is not a Business Day shall be the
next succeeding Business Day with the same force and effect as if payment had
been made on the due date and no interest shall accrue for the period from and
after such date. Any payment of principal, premium, if any, or interest on the
Maturity of this Note which is due on any day which is not a Business Day need
not be made on such day, but may be made on the next succeeding Business Day
with the same force and effect as if made on the due date and no interest shall
accrue for the period from and after such date.
"Business Day" shall mean any day other than a Saturday or Sunday
which is not a day on which banking institutions are generally authorized or
required by law or regulation to close in The City of New York and (a) in the
event that this Note is denominated in a Specified Currency (other than ECUs),
in the financial center of the country issuing the Specified Currency and (b) if
this Note is denominated in ECUs, in the financial center of each country that
issues a component currency of the ECU and that is a non-ECU settlement day.
Additional provisions of this Note are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
<PAGE>
7
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, BARNETT BANKS, INC. has caused this instrument
to be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION BARNETT BANKS, INC.
This Note is one of a designated series
of Debt Securities described in the Indenture
referred to on the reverse hereof. By:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee,
Attest:
By:
Authorized Officer Assistant Secretary
[SEAL]
<PAGE>
8
[Form of Reverse of Senior Fixed Rate Note]
BARNETT BANKS, INC.
MEDIUM-TERM FIXED RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of Medium-Term Notes,
Series D of the Company (hereinafter called the "Notes"), issued or to be issued
in one or more series under and pursuant to an indenture, dated as of March 16,
1995 (as supplemented or amended from time to time, the "Indenture"), duly
executed and delivered by the Company to The First National Bank of Chicago, as
Trustee (hereinafter called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face, limited in aggregate principal amount
to $500,000,000.
Unless otherwise specified on the face hereof, if this Note is
denominated in a Specified Currency, a Holder of this Note who, in accordance
with the provisions of this Note, elects to receive payments in U.S. dollars
will receive payments of principal, premium and interest in U.S. dollars
determined with reference to the highest bid quotation in The City of New York
received by the Exchange Rate Agent as of 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one
<PAGE>
9
of which may be the Exchange Rate Agent unless the Exchange Rate Agent solicited
the sale of this Note on behalf of the Company) selected by the Exchange Rate
Agent for the purchase by the quoting dealer of the Specified Currency for U.S.
dollars for settlement on such payment date, in an amount equal to the aggregate
amount of the Specified Currency payable to all Holders of Notes electing to
receive U.S. dollar payments on such payment date and at which the applicable
dealer commits to execute a contract. If three such bid quotations are not
available, payments will be made in the Specified Currency. All currency
exchange costs associated with any payments in U.S. dollars will be borne by the
Holder of the Note by deductions from such payments.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency and, due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Specified Currency
is not available or is no longer used by the government of the country issuing
such currency or for the settlement of transactions by public institutions
within the international banking community at the time of any scheduled payment
of principal, premium or interest to be made in the Specified Currency, then the
Company shall be entitled to satisfy its obligations hereunder by making such
payment in U.S. dollars. Any such payment made in U.S. dollars pursuant to the
preceding sentence shall be made on the basis of the noon buying rate in The
City of New York for cable transfers of the Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York (the "Market Exchange
Rate")
<PAGE>
10
on the second Business Day prior to such payment, or if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate. Any payment under such circumstances in U.S. dollars where
required payment is in a Specified Currency will not constitute a default under
the Indenture.
If the Specified Currency is in ECUs and ECUs are unavailable due to
the imposition of exchange controls or other circumstances beyond the Company's
control or are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars until ECUs are again
available or so used. The amount of each payment in U.S. dollars shall be
computed on the basis of the equivalent of the ECU in U.S. dollars, determined
as described below, as of the second Business Day prior to the date on which
such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Company or such agent on the basis of the most recently
available Market Exchange Rate for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that
<PAGE>
11
currency as a Component shall be divided or multiplied in the same proportion.
If two or more Components are consolidated into a single currency, the amounts
of those currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the appropriate amounts of the consolidated
component currencies expressed in such single currency. If any Component is
divided into two or more currencies, the amount of the original component
currency shall be replaced by the appropriate amounts of such two or more
currencies, the sum of which shall be equal to the amount of the original
component currency.
In case an Event of Default, as defined in the Indenture, with respect
to the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such
<PAGE>
12
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
If so provided on the face of this Note, this Note may be redeemed
by the Company on and after the date so indicated on the face hereof. On and
after the date, if any, from which this Note may be redeemed, this Note may be
redeemed in whole or in part, at the option of the Company at a redemption price
equal to the product of the principal amount of this Note to be redeemed
multiplied by the Redemption Percentage. The Redemption Percentage shall
initially equal the Initial Redemption Percentage specified on the face of this
Note, and shall decline at each anniversary of the initial date that this Note
is redeemable by the amount of the Annual Redemption Percentage Reduction
specified on the face of this Note, until the Redemption Percentage is equal to
100%.
If so provided on the face of this Note, this Note will be repayable
in whole or in part in increments of $1,000 or, in the case of non-U.S. dollar
denominated Notes, of an amount equal to the integral multiples specified on the
face hereof under Authorized Denominations (or, if no such reference is made, an
amount equal to the minimum Authorized Denomination) provided that the remaining
principal amount of any Note surrendered for partial repayment shall be at least
$1,000 or, in the case of Notes denominated in a Specified Currency, the minimum
Authorized Denomination specified on the face hereof, on any Business Day on
<PAGE>
13
or after the Initial Date on which this Note is repayable at the option of the
Holder specified on the face hereof, at the option of the Holder, at 100% of the
principal amount to be repaid, plus accrued interest, if any, to the repayment
date. In order for the exercise of the option to be effective and the Notes to
be repaid, the Company must receive at the applicable address of the Paying
Agent set forth below or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, on or before the
fifteenth, but not earlier than the thirtieth calendar day, or, if such day is
not a Business Day, the next succeeding Business Day, prior to the repayment
date, either (i) this Note, with the form below entitled "Option to Elect
Repayment" duly completed, or (ii) a telegram, telex, facsimile transmission, or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust company
in the United States of America setting forth (a) the name, address, and
telephone number of the Holder of this Note, (b) the principal amount of this
Note and the amount of this Note to be repaid, (c) the certificate number or a
description of the tenor and terms of this Note, (d) a statement that the option
to elect repayment is being exercised thereby, and (e) a guarantee stating that
the Company will receive this Note, with the form below entitled "Option to
Elect Repayment" duly completed, not later than five Business Days after the
date of such telegram, telex, facsimile transmission, or letter (and this Note
and form duly completed are received by the Company by such fifth Business
Any such election shall be irrevocable. The address to which such
<PAGE>
14
deliveries are to be made is The First National Bank of Chicago, Attention:
Corporate Trust Services Division, One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126 (or at such other places as the Company shall
notify the Holders of the Notes). All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Note for repayment will be
determined by the Company, whose determination will be final and binding.
The Notes are issuable in global or definitive form without coupons in
denominations of $1,000 and integral multiples of $1,000 in excess thereof or,
if the Note is denominated in a Specified Currency, in the denominations
specified on the face hereof. Upon due presentment for registration of transfer
of this Note at the office or agency of the Company in any place where the
principal of, premium, if any, and interest on this Note are payable, a new Note
or Notes in authorized denominations in U.S. dollars or the Specified Currency,
as the case may be, for an equal aggregate principal amount and like tenor will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture and to the limitations described below if applicable,
without charge except for any tax or other governmental charge imposed in
connection therewith.
If this Note is a Global Note (as specified on the face hereof), this
Note is exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in
<PAGE>
15
its sole discretion determines that this Note shall be exchangeable for
definitive Notes in registered form or (z) an Event of Default, or an event
which with notice or lapse of time would be an Event of Default, with respect to
the Notes represented hereby has occurred and is continuing. If this Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Notes in registered form, bearing interest (if any) at the same rate
or pursuant to the same formula, having the same date of issuance, redemption
provisions, if any, Specified Currency, Stated Maturity and other terms and of
differing denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the places, at the respective times, at the rate and in
the currency herein prescribed.
The Company, the Trustee and any paying agent may deem and treat the
Holder hereof as the absolute owner of this Note at such Holder's address as it
appears on the Security Register as kept by the Trustee or duly authorized agent
of the Company (whether or not this Note shall be overdue), for the purpose of
receiving payment of or on account hereof and for all other purposes, and
neither the Company nor the Trustee nor any paying agent shall be affected by
any notice to the contrary. All payments made to or upon the order of such
registered Holder shall, to the extent of the sum or sums paid, effectually
satisfy and discharge liability for moneys payable on this Note.
<PAGE>
16
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
<PAGE>
17
----------------------------------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at ________________________
______________________________________________________________________.
(Please print or typewrite name and address of the undersigned.)
For this Note to be repaid the Company must receive at the applicable
address of the Paying Agent set forth above or at such other place or places of
which the Company shall from time to time notify the Holder of the within Note,
on or before the fifteenth, but not earlier than the thirtieth, calendar day,
or, if such day is not a Business Day, the next succeeding Business Day, prior
to the repayment date, (i) this Note, with this "Option to Elect Repayment" form
duly completed, or (ii) a telegram, telex, facsimile transmission, or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address, and telephone number of
the Holder of the Note, (b) the principal amount of the Note and the amount of
the Note to be repaid, (c) the certificate number or a description of the tenor
and terms of this Note, (d) a statement that the option to elect
<PAGE>
18
repayment is being exercised thereby, and (e) a guarantee stating that the Note
to be repaid with the form entitled "Option to Elect Repayment" on the reverse
of the Note duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission, or
letter (and such Note and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples specified on the face hereof under
Authorized Denominations (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination)) which the Holder elects to have repaid:
_____________________________; and specify the denomination or denominations
(which shall be $1,000 or an integral multiple of $1,000 in excess thereof or,
if the Note is denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion of
the within Note not being repaid (in the absence of any specification, one such
Note will be issued for the portion not being repaid):
____________________________
Date:_______________________ ___________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the name
as written upon the face of the Note in every
particular without alteration or enlargement
or any other change whatsoever.
___________________________________
<PAGE>
19
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT--_____Custodian____________
TEN ENT-- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint with right of survivorship Under Uniform Gifts to Minors
Act
and not as tenants in common _________________________________
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
20
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
the within Note and does hereby irrevocably constitute and appoint
________________________________________________________________________________
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
Dated: ________________
_______________________________________
____________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
[Form of Face of Subordinated Floating Rate Note]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR BY ANY OTHER GOVERNMENT AGENCY.
CUSIP NO.
REGISTERED NO. FLR
BARNETT BANKS, INC.
MEDIUM-TERM FLOATING RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
[INCLUDE LEGEND IF THIS IS A GLOBAL NOTE ---
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER (OTHER THAN A TRANSFER
OF THIS SECURITY 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) MAY BE REGISTERED, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS
NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
INTEREST RATE BASIS: INDEX MATURITY: SPECIFIED CURRENCY:
(if other than U.S. dollars)
REDEEMABLE ON OR AFTER
(AT OPTION OF COMPANY): SPREAD MULTIPLIER: SPREAD: +
-
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
<PAGE>
2
EXCHANGE RATE AGENT: INITIAL REDEMPTION INTEREST RESET PERIOD:
(Only applicable if PERCENTAGE:
Specified Currency is
other than U.S. Dollars)
CALCULATION AGENT: INTEREST RESET DATE:
INITIAL DATE ON WHICH ALTERNATIVE RATE EVENT
THIS NOTE IS REPAYABLE SPREAD:
AT THE OPTION OF THE
HOLDER:
INITIAL REPAYMENT
PERCENTAGE:
ANNUAL REPAYMENT
PERCENTAGE REDUCTION:
INTEREST PAYMENT DATES: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
CALCULATION DATES: AUTHORIZED DENOMINATIONS:
(Only applicable if Specified
Currency is other than U.S.
dollars)
INTEREST DETERMINATION
DATES:
BARNETT BANKS, INC., a corporation duly organized and existing under
the laws of the State of Florida (herein called the "Company"), for value
received, hereby promises to pay to ____________________________, or registered
assigns, the principal sum of __________________________________________ (any
coin or currency other than U.S. dollars being hereinafter referred to as a
"Specified Currency"), on the Maturity Date specified above, or if such date is
not a Business Day, the next succeeding Business Day (the "Maturity Date"), in
such coin or currency specified above as at the time of payment shall be legal
tender for the payment of public and private debts, and to pay interest
commencing with the Original Issue Date specified above or from and including
the most recent Interest Payment Date to which interest has been duly paid or
provided for monthly, quarterly, semi-annually or annually as specified above
under "Interest Payment Period," on the Interest Payment Dates specified above
and at Maturity, on said principal sum, in like
<PAGE>
3
coin or currency, at a rate per annum equal to the Initial Interest Rate
specified above until the first Interest Reset Date specified above following
the Original Issue Date specified above and thereafter at a rate per annum
determined in accordance with the provisions on the reverse hereof under the
heading "Determination of Interest Rate Per Annum for Prime Rate Notes,"
"Determination of Interest Rate Per Annum for LIBOR Notes," "Determination of
Interest Rate Per Annum for Treasury Rate Notes," "Determination of Interest
Rate Per Annum for Commercial Paper Notes, "Determination of Interest Rate Per
Annum for CD Rate Notes," "Determination of Interest Rate Per Annum for Federal
Funds Rate Notes," "Determination of Interest Rate Per Annum for CMT Rate
Notes," "Determination of Interest Rate Per Annum for 11th District Cost of
Funds Rate Notes," or "Determination of Interest Rate Per Annum for J.J. Kenny
Rate Notes," depending upon whether the Interest Rate Basis is Prime Rate,
LIBOR, Treasury Rate, Commercial Paper Rate, CD Rate, Federal Funds Rate, CMT
Rate, 11th District Cost of Funds Rate or J.J. Kenny Rate as specified above;
PROVIDED, HOWEVER, that if any Interest Payment Date specified above would
otherwise fall on a day that is not a Business Day (as defined herein), such
Interest Payment Date will be the following day that is a Business Day, except
that in the event that the Interest Rate Basis for this Note is LIBOR, if such
day falls in the next calendar month, such Interest Payment Date will be the
immediately preceding day that is a Business Day; PROVIDED, FURTHER, that the
Company will make such payments in a Specified Currency in the Specified
Currency specified above in amounts
<PAGE>
4
determined as set forth on the reverse hereof; PROVIDED, HOWEVER, that payments
of principal (and premium, if any) and interest on Notes denominated in other
than U.S. dollars will nevertheless be made in U.S. dollars (i) at the election
of the Holder as provided herein and (ii) at the election of the Company in the
case of imposition of exchange controls or other circumstances beyond the
control of the Company as provided herein. Interest on this Note shall accrue
(a) if the rate at which interest on this Note is payable shall be adjusted
monthly, quarterly, semi-annually or annually, as specified above under
"Interest Rate Reset Period" and as determined in accordance with the provisions
on the reverse hereof, from the Interest Payment Date next preceding the date of
this Note to which interest has been paid, unless the date hereof is an Interest
Payment Date to which interest has been paid, in which case from the date of
this Note, or unless no interest has been paid on this Note, in which case from
the Original Issue Date specified above, until payment of said principal sum has
been made or duly provided for or (b) if the rate at which interest on this Note
is payable shall be adjusted weekly, as specified above under "Interest Rate
Reset Period" and as determined in accordance with the provisions on the reverse
hereof, from the last date to which interest has been paid, unless the date
hereof is a Record Date through which interest has been paid, in which case from
the day after the date of this Note, or unless no interest has been paid on this
Note, in which case from the Original Issue Date specified above, until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the Original Issue Date is
<PAGE>
5
after any Record Date preceding any Interest Payment Date and before such
Interest Payment Date, interest on this Note shall accrue from such Interest
Payment Date unless the rate at which interest on this Note is payable shall be
adjusted weekly, as provided above under "Interest Rate Reset Period" and as
determined in accordance with the provisions on the reverse hereof, in which
case interest on this Note shall accrue from and including the last date to
which interest has been paid or duly provided for to and including such Record
Date, or, in either case, if no interest has been paid on this Note, from the
Original Issue Date specified above. Subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, the interest so payable on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the Record Date next preceding such
Interest Payment Date, and interest payable at Maturity will be paid to the
Person to whom said principal sum is payable; PROVIDED, HOWEVER, that the first
payment of interest on a Note originally issued between a Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Record Date to the registered owner on such next succeeding
Record Date. "Record Date" shall mean the fifteenth day (whether or not a
Business Day) prior to any Interest Payment Date. "Business Day" shall mean any
day other than a Saturday or Sunday which is not a day on which banking
institutions are generally authorized or required by law or regulation to close
in The City of New York and (a) in the event that the Interest Rate Basis for
this Note is LIBOR, in the City of London, (b) in the
<PAGE>
6
event that this Note is denominated in a Specified Currency (other than European
Currency Units ("ECUs")), in the financial center of the country issuing the
Specified Currency and (c) if this Note is denominated in ECUs, in the financial
center of each country that issues a component currency of the ECU and that is
not a non-ECU settlement day. "London Banking Day" shall mean any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market.
This Note is subordinate and junior in right of payment, to the
extent set forth in the Indenture, to all Senior Indebtedness (as hereinafter
defined) of the Company.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity,
redemption or repayment) payable in U.S. dollars will be made by check mailed to
the Person entitled thereto at his last address as it appears on the Security
Register or, at the option of the Company, by wire transfer to an account
maintained by such Person with a bank located in the United States.
Notwithstanding the foregoing, a Holder of $10,000,000 or more in aggregate
principal amount of Notes of like tenor and terms (or the Holder of the
equivalent thereof in a Specified Currency other U.S. dollars) shall be entitled
to receive interest payments (other than at Maturity, redemption or repayment)
by wire transfer in immediately available funds, but only if appropriate
instructions have been received in writing by the Paying Agent on or prior to
the applicable Record Date for such payment of interest. Payment of the
principal of, and any premium and interest on this Note due to the Holder hereof
at
<PAGE>
7
Maturity payable in U.S. dollars will be made in immediately available funds
upon presentation of this Note at the corporate trust office of Chemical Bank,
as paying agent ("Paying Agent"), in New York, New York, provided that this Note
is presented to the Paying Agent in time for the Paying Agent to make such
payments in such funds in accordance with its normal procedures.
Payments of principal, premium, if any, and interest to be made in a
Specified Currency will be paid by wire transfer of immediately available funds
to a designated account maintained with a bank located in the country issuing
the Specified Currency as shall have been designated at least 15 calendar days
prior to the payment date by the Holder of this Note. If such wire transfer
instructions are not so provided, payments of principal of, premium, if any, and
interest on this Note will be made by check drawn upon a bank located in the
financial center in the country issuing the Specified Currency (or, if this Note
is denominated in ECUs, a bank located in the financial center of any country
that issues a component currency).
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Trustee at its corporate trust
office in New York, New York and, unless revoked by written notice to the Paying
Agent received by the Paying Agent on or prior to the Record Date immediately
preceding the applicable Interest Payment Date or the fifteenth calendar day
preceding Maturity, shall remain in effect with respect to any further payments
with respect to this Note payable to such Holder.
<PAGE>
8
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon payments will be borne by the Holder or Holders
of this Note in respect of which payments are made.
If the principal of, and any premium or interest on, this Note is
payable in a Specified Currency (other than ECUs) and such Specified Currency is
not available due to the imposition of exchange controls or other circumstances
beyond the control of the Company or is no longer used by the government of the
country issuing such currency or for the settlement of transactions by public
institutions within the international banking community, the Company will be
entitled to satisfy its obligations to the Holder of this Note by making payment
in U.S. dollars on the basis of the most recently available exchange rate as
specified by the Exchange Rate Agent as provided herein. If the principal of
and any premium and interest on this Note is payable in ECUs and ECUs are not
available due to the imposition of exchange controls or other circumstances
beyond the Company's control or are no longer used in the European Monetary
System, then the Company will be entitled to satisfy its obligations under this
Note by making payments in U.S. dollars on the basis of the most recently
available exchange rate as specified by the Company or its agent as provided
herein.
Any Interest Payment Date which is not a Business Day shall be the
next succeeding Business Day with the same force and effect as if payment had
been made on the due date and no interest shall accrue for the period from and
after such date;
<PAGE>
9
PROVIDED, HOWEVER, that if the Interest Rate Basis of this Note is LIBOR and if
such Business Day is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding day which is a Business Day.
Any payment of principal, premium, if any, or interest on the Maturity of
this Note which is due on any day which is not a Business Day need not be made
on such day, but may be made on the next succeeding Business Day with the same
force and effect as if made on the due date and no interest shall accrue for the
period from and after such date.
Additional provisions of this Note are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to on the reverse hereof.
<PAGE>
10
IN WITNESS WHEREOF, BARNETT BANKS, INC. has caused this instrument
to be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION BARNETT BANKS, INC.
This Note is one of a designated series
of Securities described in the Indenture
referred to on the reverse hereof By:
CHEMICAL BANK, as Trustee,
Attest:
By:
Authorized Officer Secretary
[SEAL]
<PAGE>
11
[Form of Reverse of Subordinated Floating Rate Note]
BARNETT BANKS, INC.
MEDIUM-TERM FLOATING RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of Medium-Term Notes,
Series D of the Company (hereinafter called the "Notes"), issued or to be issued
in one or more series under and pursuant to an indenture, dated as of March 16,
1995 (as supplemented or amended from time to time, the "Indenture"), duly
executed and delivered by the Company to Chemical Bank, as Trustee (hereinafter
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof, limited in aggregate principal amount to
$500,000,000.
This Note is a direct, unsecured obligation of the Company and ranks
pari passu with all outstanding subordinated indebtedness of the Company.
This Note is subordinate and junior in right of payment, to the
extent set forth in the Indenture, to all Senior Indebtedness of the Company.
In the event that the Company 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
<PAGE>
12
declaration 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 Notes, or in respect of any
redemption, retirement, purchase or other acquisition of any of the Notes.
"Senior Indebtedness" means (i) 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 the Indenture or thereafter created,
assumed or incurred, except (x) obligations evidenced by the Subordinated
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 Subordinated Securities, or to rank pari
passu in right of payment with the Subordinated Securities, (ii) whether
outstanding on March 16, 1995 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 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 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
<PAGE>
13
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 March 16, 1995.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property, (ii) any
proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (iii) any assignment by the Company for the benefit of creditors or
(iv) any other marshalling of the assets of the Company, all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will first 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 Notes. In such event, any payment or
distribution on account of the principal of or interest on the Notes, 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 the
subordination provisions with respect to the Notes, 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
<PAGE>
14
the subordination provisions) be payable or deliverable in respect of the Notes
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 Notes 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 or reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Notes, 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 Notes in contravention of
any of the terms of the 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 Notes, together with the holders of any
obligation of the Company ranking on a parity with
<PAGE>
15
the Notes, will be entitled to be repaid from the remaining assets of the
Company the amounts at that time due and owing on account of unpaid principal of
or any premium and interest on the Notes 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 Company ranking
junior to the Notes and such other obligations. By reason of such
subordination, in the event of the insolvency of the Company, holders of Senior
Indebtedness may receive more, ratably, and Holders of the Notes having a claim
pursuant to such Notes may receive less, ratably, than the other creditors of
the Company. Such subordination will not prevent the occurrence of an Event of
Default in respect of the Notes.
Unless otherwise specified on the face hereof, the rate of interest
on this Note will be reset daily, weekly, monthly, quarterly, semiannually or
annually (such period being the "Interest Reset Period", and the first day of
each Interest Reset Period being an "Interest Reset Date"). Unless otherwise
specified on the face hereof, the Interest Reset Date will be, in case this Note
resets daily, each Business Day; in case this Note resets weekly (unless the
Treasury Rate is specified as the Interest Rate Basis on the face hereof), the
Wednesday of each week; in case of Treasury Rate Notes which reset weekly, the
Tuesday of each week, except as provided below; in case this Note resets monthly
(other than 11th District Cost of Funds Rate Notes), the third Wednesday of each
month; in the case of 11th District Cost of Funds Rate Notes which reset
monthly, the first calendar day of each month; in case this Note resets
quarterly,
<PAGE>
16
the third Wednesday of March, June, September and December; in case this Note
resets semiannually, the third Wednesday of two months of each year, specified
on the face hereof; and in case this Note resets annually, the third Wednesday
of one month of each year, specified on the face hereof; PROVIDED, HOWEVER, that
the interest rate in effect from the date of issue to the first Interest Reset
Date shall be the Initial Interest Rate specified on the face hereof. If any
Interest Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next succeeding Business Day,
except that if the Interest Rate Basis of this Note is LIBOR and if such
Business Day is the next succeeding calendar month, such Interest Reset Date
shall be the next preceding Business Day. Subject to applicable provisions of
law and except as specified herein, on each Interest Reset Date, the rate of
interest on this Note shall be the rate determined with respect to the Interest
Determination Date next preceding such Interest Reset Date in accordance with
the provisions of the applicable heading below.
DETERMINATION OF INTEREST RATE PER ANNUM FOR PRIME RATE NOTES. If
the Interest Rate Basis specified on the face hereof is Prime Rate, the interest
rate per annum determined with respect to any Interest Determination Date shall
equal the rate, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, set forth in "Statistical Release H.15(519),
Selected Interest Rates", published by the Board of Governors of the Federal
Reserve System or any successor publication published by the Board of Governors
<PAGE>
17
of the Federal Reserve System ("H.15(519)") under the heading "Bank Prime Loan".
In the event that such rate is not published prior to 9:00 A.M., New York City
time, on the relevant Calculation Date, then the Prime Rate with respect to such
Interest Determination Date will be the arithmetic mean (adjusted or multiplied
as described above) of the rates of interest publicly announced by each bank
that appears on the display designated as page "NYMF" on the Reuters Monitor
Money Rates Service (or such other page as may replace the NYMF page on that
service for the purpose of displaying prime rates or base lending rates of major
United States banks) ("Reuters Screen NYMF Page") as such bank's prime rate or
base lending rate as in effect for such Interest Determination Date as quoted on
the Reuters Screen NYMF Page on such Interest Determination Date. If fewer than
four such rates appear on the Reuters Screen NYMF Page on such Interest
Determination Date, the Prime Rate will be the arithmetic mean (adjusted or
multiplied as described above) of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Interest Determination Date by at least two of three major
money center banks in The City of New York selected by the Calculation Agent
from which quotations are requested. If fewer than two quotations are provided,
the Prime Rate shall be determined as the arithmetic mean (adjusted or
multiplied as described above) on the basis of the prime rates in The City of
New York by the appropriate number of substitute banks or trust companies
organized and doing business under the laws of the United States, or any State
thereof, in each case having total
<PAGE>
18
equity capital of at least U.S. $500 million and being subject to supervision or
examination by federal or state authority, selected by the Calculation Agent to
quote such rate or rates. If in any month or two consecutive months the Prime
Rate is not published in H.15(519) and the banks or trust companies selected as
aforesaid are not quoting as mentioned in the preceding sentence, the "Prime
Rate" for such Interest Reset Period will be the same as the Prime Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). If this failure continues over three
or more consecutive months, the Prime Rate for each succeeding Interest
Determination Date until Maturity of this Note or, if earlier, until this
failure ceases, shall be LIBOR determined as if such Prime Rate Notes were LIBOR
Notes, and the Spread, if any, shall be the number of basis points specified in
the applicable Pricing Supplement as the "Alternative Rate Event Spread."
DETERMINATION OF INTEREST RATE PER ANNUM FOR LIBOR NOTES. If the
Interest Rate Basis specified on the face hereof is LIBOR, the interest rate per
annum determined with respect to any Interest Determination Date shall equal
[the rate for deposits in U.S. dollars having the Index Maturity specified on
the face hereof which appears on the Telerate Page 3750 (as defined below) as of
11:00 a.m., London time, on such Interest Determination Date ("LIBOR-Telerate")]
[the arithmetic mean of the offered rates for deposits in U.S. dollars having
the Index Maturity specified on the face hereof which appear on the Reuters
Screen LIBO Page (as defined below) as of 11:00 a.m., London
<PAGE>
19
time, on such Interest Determination Date, provided that at least two such
offered rates appear on the Reuters Screen LIBO Page ("LIBO-Reuters")].
If on any Interest Determination Date [where LIBOR-Telerate applies,
the rate for deposits in U.S. dollars having the applicable Index Maturity does
not appear on the Telerate Page 3750 as specified above] [where LIBOR-Reuters
applies, fewer than two offered rates for deposits in U.S. dollars having the
applicable Index Maturity appear on the Reuters Screen LIBO Page as specified
above], LIBOR will be determined on the basis of the rates at which deposits in
U.S. dollars are offered by four major banks in the London interbank market
selected by the Calculation Agent at approximately 11:00 a.m., London time, on
such Interest Determination Date to prime banks in the London interbank market
having the Index Maturity specified on the face hereof and in a principal amount
equal to an amount that is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each of such banks to provide a quotation of its rate. If at least
two such quotations are provided, the rate in respect of such Interest
Determination Date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided, LIBOR in respect of such Interest Determination
Date will be the arithmetic mean of the rates quoted by three major banks in The
City of New York, selected by the Calculation Agent, at approximately 11:00
a.m., New York City time, on such Interest Determination Date for loans in U.S.
dollars to leading European banks, having the Index Maturity specified on the
face hereof and in a principal amount
<PAGE>
20
equal to an amount that is representative for a single transaction in such
market at such time; PROVIDED, HOWEVER, that if the banks selected as aforesaid
by the Calculation Agent are not quoting as described in this sentence, LIBOR
with respect to such Interest Determination Date shall be the same as LIBOR for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Telerate Page 3750" means the display page designated as page 3750
on the Dow Jones Telerate Service (or such other page as may replace page 3750
on that service for the purpose of displaying London interbank offered rates).
"Reuters Screen LIBO Page" means the display page designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates).
DETERMINATION OF INTEREST RATE PER ANNUM FOR TREASURY RATE NOTES.
If the Interest Rate Basis specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date shall equal the rate for the auction held on such date of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
specified on the face hereof as published in H.15(519), under the heading
"Treasury Bills-auction average (investment)" or, if not so published by 9:00
A.M., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination Date
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
<PAGE>
21
applicable, and applied on a daily basis) as otherwise reported by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof.
In the event that the results of the auctions of Treasury Bills having the Index
Maturity specified on the face hereof are not published or announced as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no such
auction is held on such Interest Determination Date, then the interest rate per
annum with respect to such Calculation Date shall be a yield to Maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean (adjusted or
multiplied as described above) of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers in
The City of New York selected by the Calculation Agent for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity specified on the
face hereof, adjusted or multiplied as described above; PROVIDED, HOWEVER, that
if the dealers selected as aforesaid by the Calculation Agent are not quoting
bid rates as described in this sentence, the interest rate per annum hereon with
respect to such Interest Determination Date shall be the same as the Treasury
Rate for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the Initial Interest Rate).
<PAGE>
22
DETERMINATION OF INTEREST RATE PER ANNUM FOR COMMERCIAL PAPER RATE
NOTES. If the Interest Rate Basis specified on the face hereof is Commercial
Paper Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal (a) the Money Market Yield (as defined herein) of
the rate on such Interest Determination Date for commercial paper having the
Index Maturity specified on the face hereof, (i) as such rate is published in
H.15(519), under the heading "Commercial Paper," or (ii) if such rate is not
published on or prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, as published by the Federal
Reserve Bank of New York in its daily statistical release, "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite Quotations"), under the
heading "Commercial Paper," or (b) if by 3:00 P.M., New York City time, on such
Calculation Date, such rate is not published in either of such publications, the
Money Market Yield of the arithmetic mean of the offered rates, as of 11:00
A.M., New York City time, on such Interest Determination Date, of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent for commercial paper having the Index Maturity specified on the face
hereof placed for industrial issuers whose bond rating is "AA", or the
equivalent, from a nationally recognized rating agency, in each of the above
cases adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or by multiplication by the Spread Multiplier, if any,
specified on the face hereof; PROVIDED, HOWEVER, that if fewer than three such
dealers are quoting as described above, the interest rate per annum hereon
<PAGE>
23
with respect to such Interest Determination Date will be the same as the
Commercial Paper Rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 X D
----------------------------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF INTEREST RATE PER ANNUM FOR CD RATE NOTES. If the
Interest Rate Basis specified on the face hereof is CD Rate, the interest rate
per annum determined with respect to any Interest Determination Date shall equal
the rate, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof for negotiable certificates of deposit having
the specified Index Maturity as published in Release H.15(519) under the heading
"CDs (Secondary Market)," in the event that such rate is not published prior to
9:00 A.M., New York City time, on the relevant Calculation Date, relating to
such Interest Determination Date, then the CD Rate with respect to such Interest
Determination Date shall be the rate (adjusted or multiplied as described above)
for negotiable certificates of deposit having the Index Maturity specified on
the face hereof as published in Composite Quotations under the
<PAGE>
24
heading "Certificates of Deposit;" if by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, the CD Rate with respect to such Interest Determination Date shall
be the arithmetic mean (adjusted or multiplied as described above) of the
secondary market offered rates, as of 10:00 A.M., New York City time, on such
Interest Determination Date, of three leading nonbank dealers of negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money center banks of the highest credit standing in the market for negotiable
certificates of deposit with a remaining maturity closest to the Index Maturity
specified on the face hereof in a denomination of U.S. $5,000,000; PROVIDED,
HOWEVER, that, if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as mentioned in this sentence, the CD Rate with
respect to such Interest Reset Period will be the same as the CD Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
DETERMINATION OF INTEREST RATE PER ANNUM FOR FEDERAL FUNDS RATE
NOTES. If the Interest Rate Basis specified on the face hereof is Federal Funds
Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal the rate, adjusted by the addition or subtraction
of the Spread, if any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof, on the Interest
Determination Date for Federal Funds
<PAGE>
25
as published in H.15(519) under the heading "Federal Funds (Effective)." In the
event that such rate is not published prior to 9:00 A.M., New York City time, on
the relevant Calculation Date pertaining to such Interest Determination Date,
then the Federal Funds Rate with respect to such Interest Determination Date
shall be the rate (adjusted or multiplied as described above) on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in H.15(519) or Composite
Quotations, the Federal Funds Rate with respect to such Interest Determination
Date shall be the arithmetic mean (adjusted or multiplied as described above) of
the rates, as of 11:00 A.M., New York City time, on such Interest Determination
Date, for the last transaction in overnight Federal funds arranged by three
leading brokers of Federal funds transactions in The City of New York selected
by the Calculation Agent; PROVIDED, HOWEVER, that if fewer than three brokers
selected as aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, the Federal Funds Rate with respect to such Interest Determination
Date shall be the same as the Federal Funds Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the
Initial Interest Rate).
DETERMINATION OF INTEREST RATE PER ANNUM FOR J.J. KENNY RATE NOTES
If the Interest Rate Basis specified on the face hereof is J.J.
Kenny Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal the rate,
<PAGE>
26
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by multiplication by the Spread Multiplier, if any, specified on
the face hereof, on the Interest Determination Date for the high-grade weekly
index (the "Weekly Index") on such date made available by Kenny Information
Systems ("Kenny") to the Calculation Agent. The Weekly Index is, and shall be,
based upon 30-day yield evaluations at par of bonds, the interest of which is
exempt from Federal income taxation under the Internal Revenue Code of 1986, as
amended (the "Code"), of not less than five high-grade component issuers
selected by Kenny which shall include, without limitation, issuers of general
obligation bonds. The specific issuers included among the component issuers may
be changed from time to time by Kenny in its discretion. The bonds on which the
Weekly Index is based shall not include any bonds on which the interest is
subject to a minimum tax or similar tax under the Code, unless all tax-exempt
bonds are subject to such tax. In the event Kenny ceases to make available such
Weekly Index, a successor indexing agent will be selected by the Calculation
Agent, such index to reflect the prevailing rate for bonds rated in the highest
short-term rating category by Moody's Investors Service, Inc. and Standard &
Poor's Ratings Group in respect of issuers most closely resembling the
high-grade component issuers selected by Kenny for its Weekly Index, the
interest on which is (A) variable on a weekly basis, (B) exempt from Federal
income taxation under the Code and (C) not subject to a minimum tax or similar
tax under the Code, unless all tax-exempt bonds are subject to such tax. If
such successor indexing agent is not available, the rate for any
<PAGE>
27
Interest Determination Date with respect to J.J. Kenny Notes shall be 67% of the
rate determined if the Treasury Rate option had been originally selected. The
Calculation Agent shall calculate the J.J. Kenny Rate in accordance with the
foregoing. At the request of a Holder of a Floating Rate Note bearing interest
at the J.J. Kenny Rate, the Calculation Agent will provide such Holder with the
interest rate that will become effective as of the next Interest Reset Date.
DETERMINATION OF INTEREST RATE PER ANNUM FOR 11TH DISTRICT COST OF FUNDS RATE
NOTES
If the Interest Rate Basis specified on the face hereof is 11th
District Cost of Funds Rate, the interest rate per annum determined with respect
to any Interest Determination Date shall equal the rate, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof, on the Interest Determination Date for the monthly weighted average cost
of funds for the calendar month immediately preceding the month in which such
Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such
Interest Determination Date. If such rate does not appear on Telerate Page 7058
on any related Interest Determination Date, the 11th District Cost of Funds Rate
for such Interest Determination Date shall be the monthly weighted average cost
of funds paid by member institutions of the 11th Federal Home Loan Bank District
that was most recently announced (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month
<PAGE>
28
immediately preceding the date of such announcement. If the FHLB of San
Francisco fails to announce such rate for the calendar month immediately
preceding such Interest Determination Date, then the 11th District Cost of Funds
Rate determined as of such Interest Determination Date will be the 11th District
Cost of Funds Rate in effect on such Interest Determination Date.
DETERMINATION OF INTEREST RATE PER ANNUM FOR CMT RATE NOTES
If the Interest Rate Basis specified on the face hereof is CMT Rate,
the interest rate per annum determined with respect to any Interest
Determination Date shall equal the rate, adjusted by the addition or subtraction
of the Spread, if any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof, on the Interest
Determination Date displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such Interest Determination
Date and (ii) if the Designated CMT Telerate Page is 7052, the week, or the
month, as applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the
<PAGE>
29
relevant H.15(519). If such rate is no longer published, or if not published by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date, then
the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30 P.M.,
New York City time, on the Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in the City of New York (which
may include an Agent or its affiliates) selected by the Calculation Agent (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest), and
the lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes"), with an
<PAGE>
30
original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such Interest Determination Date will be calculated
by the Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of approximately 3:30 P.M.,
New York City time, on the Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; PROVIDED,
HOWEVER, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such Interest Determination Date. If two Treasury Notes with an
original maturity as described in the third preceding sentence have remaining
terms to maturity equally close to the Designated
<PAGE>
31
CMT Maturity Index, the quotes for the Treasury Note with the shorter remaining
term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in the applicable Pricing Supplement (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified in the applicable Pricing Supplement with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
Notwithstanding the foregoing, the interest rate per annum hereon
shall not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the foregoing
on or before each Interest Calculation Date. The Calculation Agent's
determination of the interest rate on this Note shall be final and binding on
the Company and the Holder of this Note in the absence of manifest error.
<PAGE>
32
All percentages used in or resulting from any calculation of the
rate of interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward, and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent, with one-half cent
rounded upward.
The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date with respect
to this Note.
Interest payments hereon will include interest accrued from, and
including, the date of issue or from, and including the last date to which
interest has been paid to or duly provided for, but excluding the applicable
Interest Payment Date. Accrued interest shall be calculated by multiplying the
face amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factors calculated for each day in the
period for which interest is being paid. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed by dividing the
interest rate per annum applicable to such day by 360 if the Interest Rate Basis
specified on the face hereof is Prime Rate, LIBOR, Commercial Paper Rate, CD
Rate, Federal Funds Rate, 11th
<PAGE>
33
District Cost of Funds Rate or J.J. Kenny Rate or by the actual number of days
in the year if the Interest Rate Basis specified on the face hereof is Treasury
Rate or CMT Rate.
The "Interest Determination Date" pertaining to an Interest Reset
Date for CD Rate Notes, Commercial Paper Rate Notes, Federal Funds Rate Notes,
CMT Rate Notes, Prime Rate Notes and J.J. Kenny Rate Notes will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Note will be
the second London Banking Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note will be the last working day of the month immediately
preceding each Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index. The Interest
Determination Date pertaining to an Interest Reset Date for a Treasury Rate Note
will be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned; PROVIDED, HOWEVER, that if, as the
result of a legal holiday, an auction is so held on the Friday preceding the
Interest Reset Date, such Friday will be the Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week;
PROVIDED, FURTHER, that if an auction falls on a day that is an Interest Reset
Date, such Interest Reset Date will be the next following Business Day.
The "Calculation Date" pertaining to an Interest Determination Date
will be the earlier of (i) the tenth calendar day after such Interest
Determination Date or the next succeeding
<PAGE>
34
Record Date after such Interest Determination Date or, if either such day is not
a Business Day, the next succeeding Business Day or (ii) the Business Day
preceding the applicable Interest Payment Date or date of maturity, as the case
may be.
Unless otherwise specified on the face hereof, if this Note is
denominated in a Specified Currency, a Holder of this Note who, in accordance
with the provisions of this Note, elects to receive payments in U.S. dollars
will receive payments of principal, premium and interest in U.S. dollars
delivered with reference to the highest bid quotation in The City of New York
received by the Exchange Rate Agent as of 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent unless the
Exchange Rate Agent solicited the sale of this Note on behalf of the Company)
selected by the Exchange Rate Agent for the purchase by the quoting dealer of
the Specified Currency for U.S. dollars for settlement on such payment date, in
an amount equal to the aggregate amount of the Specified Currency payable to all
Holders of Notes electing to receive U.S. dollar payments on such payment date
and at which the applicable dealer commits to execute a contract. If three such
bid quotations are not available, payments will be made in the Specified
Currency. All currency exchange costs associated with any payments in U.S.
dollars will be borne by the Holder of the Note by deductions from such
payments.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency and, due to the
<PAGE>
35
imposition of exchange controls or other circumstances beyond the control of the
Company, the Specified Currency is not available or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community
at the time of any scheduled payment of principal, premium or interest to be
made in the Specified Currency, then the Company shall be entitled to satisfy
its obligations hereunder by making such payment in U.S. dollars. Any such
payment made in U.S. dollars pursuant to the preceding sentence shall be made on
the basis of the noon buying rate in The City of New York for cable transfers of
the Specified Currency as certified for customs purposes by the Federal Reserve
Bank of New York (the "Market Exchange Rate") on the second Business Day prior
to such payment, or if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate. Any payment under
such circumstances in U.S. dollars where required payment is in a Specified
Currency will not constitute a default under the Indenture.
If the Specified Currency is in ECUs and ECUs are unavailable due to
the imposition of exchange controls or other circumstances beyond the Company's
control or are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars until ECUs are again
available or so used. The amount of each payment in U.S. dollars shall be
computed on the basis of the equivalent of the ECU in U.S. dollars, determined
as described below, as of the second Business Day prior to the date on which
such payment is due.
<PAGE>
36
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Company or such agent on the basis of the most recently
available Market Exchange Rate for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
Components are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the appropriate amounts of the consolidated component
currencies expressed in such single currency. If any Component is divided into
two or more currencies, the amount of the original component currency shall be
replaced by the appropriate amounts of such two or more currencies, the sum of
which shall be equal to the amount of the original component currency.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
<PAGE>
37
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
If so provided on the face of this Note, this Note may be redeemed
by the Company on and after the date so indicated on the face hereof. On and
after the date, if any, from which this Note may be redeemed, this Note may be
redeemed in whole or in part, at the option of the Company, at a redemption
price equal to the product of the principal amount of this Note to be redeemed
multiplied by the Redemption Percentage. The Redemption Percentage shall
initially equal the Initial Redemption Percentage specified on the face of this
Note, and shall decline at each anniversary of the initial date that this Note
is
<PAGE>
38
redeemable by the amount of the Annual Redemption Percentage Reduction specified
on the face of this Note, until the Redemption Percentage is equal to 100%.
If so provided on the face of this Note, this Note will be repayable
in whole or in part in increments of $1,000 or, in the case of non-U.S. dollar
denominated Notes, of an amount equal to the integral multiples specified on the
face hereof under Authorized Denominations (or, if no such reference is made, an
amount equal to the minimum Authorized Denomination) provided that the remaining
principal amount of any Note surrendered for partial repayment shall be at least
$1,000 or, in the case of non-U.S. dollar denominated Notes, the minimum
Authorized Denomination specified on the face hereof, on any Business Day on or
after the Initial Date on which the Note is repayable at the option of the
Holder specified on the face hereof, at the option of the Holder, at the
repayment amount specified on the face hereof, plus accrued interest, if any, to
the repayment date. In order for the exercise of the option to be effective and
the Notes to be repaid, the Company must receive at the applicable address of
the Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Note, on or
before the fifteenth, but not earlier than the thirtieth day, or, if such day is
not a Business Day, the next succeeding Business Day, prior to the repayment
date, either (i) this Note, with the form below entitled "Option to Elect
Repayment" duly completed, or (ii) a telegram, telex, facsimile transmission, or
letter from a member of a national securities exchange or the National
Association of
<PAGE>
39
Securities Dealers, Inc., or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Note, (b) the principal amount of this Note and the amount of
this Note to be repaid, (c) the certificate number or a description of the tenor
and terms of this Note, (d) a statement that the option to elect repayment is
being exercised thereby, and (e) a guarantee stating that the Company will
receive this Note, with the form below entitled "Option to Elect Repayment" duly
completed, not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (and this Note and form duly completed
are received by the Company by such fifth Business Day). Any such election
shall be irrevocable. The address to which such deliveries are to be made is
Chemical Bank, Attention: Corporate Trust Administration, 450 West 33rd Street,
15th Floor, New York, New York 10001 (or at such other places as the Company
shall notify the Holders of the Notes). All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Note for repayment
will be determined by the Company, whose determination will be final and
binding.
The Notes are issuable in global or definitive form without coupons
in denominations of $1,000 and integral multiples of $1,000 in excess thereof
or, if the Note is denominated in a Specified Currency, in the denominations
specified on the face hereof. Upon due presentment for registration of transfer
of this Note at the office or agency of the Company in any place where the
principal of, premium, if any, and interest on this Note are payable, a new Note
or Notes in authorized denominations
<PAGE>
40
in U.S. dollars or the Specified Currency, as the case may be, for an equal
aggregate principal amount and like tenor will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture and to
the limitations described below if applicable, without charge except for any tax
or other governmental charge imposed in connection therewith.
If this Note is a Global Note (as specified on the face hereof),
this Note is exchangeable only if (x) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for this Global Note or if
at any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form or (z) an Event of Default, or an event which with notice or
lapse of time would be an Event of Default, with respect to the Notes
represented hereby has occurred and is continuing. If this Note is exchangeable
pursuant to the preceding sentence, it shall be exchangeable for definitive
Notes in registered form, bearing interest (if any) at the same rate or pursuant
to the same formula, having the same date of issuance, redemption provisions, if
any, Specified Currency, Stated Maturity and other terms and of differing
denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this
<PAGE>
41
Note at the places, at the respective times, at the rate and in the currency
herein prescribed.
The Company, the Trustee and any paying agent may deem and treat the
registered Holder hereof as the absolute owner of this Note at such Holder's
address as it appears on the Security Register of the Company as kept by the
Trustee or duly authorized agent of the Company (whether or not this Note shall
be overdue), for the purpose of receiving payment of or on account hereof and
for all other purposes, and neither the Company nor the Trustee nor any paying
agent shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums
paid, effectually satisfy and discharge liability for moneys payable on this
Note.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
<PAGE>
42
------------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the repayment date, to the undersigned, at _________________________
________________________________________________________________________________
(please print or typewrite name and address of the undersigned).
For this Note to be repaid the Company must receive at the
applicable address of the Paying Agent set forth above or at such other place or
places of which the Company shall from time to time notify the Holder of the
within Note, on or before the fifteenth, but not earlier than the thirtieth day,
or, if such day is not a Business Day, the next succeeding Business Day, prior
to the repayment date, (i) this Note, with this "Option to Elect Repayment" form
duly completed, or (ii) a telegram, telex, facsimile transmission, or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address, and telephone number of
the Holder of the Note, (b) the principal amount of the Note and the amount of
the Note to be repaid, (c) a certificate number or a description of the tenor
and terms of the Note, (d) a statement that the option to elect repayment is
being
<PAGE>
43
exercised thereby, and (d) a guarantee stating that the Note to be repaid with
the form entitled "Option to Elect Repayment" on the reverse of the Note duly
completed will be received by the Company not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter (and
such Note and form duly completed are received by the Company by such fifth
Business Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples referred to on the face hereof under
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination)) which the Holder elects to have repaid:
____________________________; and specify the denomination or denominations
(which shall be $1,000 or an integral multiple of $1,000 in excess thereof or,
if the Note is denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion of
the within Note not being repaid
<PAGE>
44
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid):
- ---------------------
Date:
----------------------- -------------------------------------------------
Notice: The signature to this Option to Elect
Repayment must correspond with the name as
written upon the face of the Note in every
particular without alteration or enlargement or
any other change whatsoever.
----------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT --________Custodian___________________________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of Under Uniform Gifts to Minors Act
survivorship and not as tenants
in common
------------------------------------------------------------
(State)
<FN>
Additional abbreviations may also be used though not in the above list.
</TABLE>
<PAGE>
45
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please Insert Social Security or
Other Identifying Number of Assignee
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and does hereby irrevocably constitute and appoint
- --------------------------------------------------------------------------------
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
Dated:
-------------------
- ------------------------------------------------------
---------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
[Form of Face of Subordinated Fixed Rate Note]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR BY ANY OTHER GOVERNMENT AGENCY.
CUSIP NO.
REGISTERED NO. FXR
BARNETT BANKS, INC.
MEDIUM-TERM FIXED RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
[INCLUDE LEGEND IF THIS IS A GLOBAL NOTE ---
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER (OTHER THAN A TRANSFER
OF THIS SECURITY 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) MAY BE REGISTERED, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
ORIGINAL ISSUE DATE: INTEREST RATE PER ANNUM: MATURITY DATE:
ISSUE PRICE: % REDEEMABLE ON OR AFTER: SPECIFIED CURRENCY:
(AT OPTION OF THE (if other than U.S. dollars)
COMPANY)
INITIAL DATE ON WHICH
THIS NOTE IS REPAYABLE
AT THE OPTION OF THE
HOLDER:
INITIAL REPAYMENT INITIAL REDEMPTION EXCHANGE RATE AGENT:
PERCENTAGE: PERCENTAGE: (Only applicable if Specified
Currency is other than U.S.
dollars)
<PAGE>
2
ANNUAL REPAYMENT
PERCENTAGE REDUCTION:
ANNUAL REDEMPTION DEFAULT RATE:
PERCENTAGE REDUCTION: (Only applicable if Note
issued at original issue
discount)
AUTHORIZED DENOMINATIONS:
(Only applicable if Specified Currency
is other than U.S. dollars)
INTEREST PAYMENT DATES:
OID DEFAULT AMOUNT:
(Only applicable if Note issued at
original issue discount)
BARNETT BANKS, INC., a corporation duly organized and existing
under the laws of the State of Florida (herein called the "Company"), for value
received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of _____________________ (any coin or
currency other than U.S. dollars being hereinafter referred to as a "Specified
Currency"), on the Maturity Date specified above, or if such date is not a
Business Day (as defined below), the next succeeding Business Day, in such coin
or currency specified above as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest on said principal
sum at the rate per annum (computed on the basis of a 360-day year of twelve
30-day months) shown above, in like coin or currency, from and including the
Original Issue Date specified above or from and including the most recent
Interest Payment Date to which interest has been duly paid or provided for, on
the Interest Payment Date(s) specified above in each year and at Maturity, until
the principal sum hereof has been paid or duly provided for; PROVIDED,
HOWEVER, that the Company will make such payments in a Specified Currency
indicated above in amounts
<PAGE>
3
determined as set forth on the reverse hereof; PROVIDED, HOWEVER, that
payments of principal of, premium, if any, and interest on Notes denominated in
a Specified Currency will nevertheless be made in U.S. dollars (i) at the
election of the Holder as provided herein and (ii) at the election of the
Company in the case of imposition of exchange controls or other circumstances
beyond the control of the Company as provided herein. The first payment of
interest on a Note originally issued and dated between a Record Date (as defined
below) and an Interest Payment Date will be due and payable on the Interest
Payment Date following the next succeeding Record Date to the registered owner
on such next succeeding Record Date. Subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, the interest so payable on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day) next preceding such Interest Payment Date (each such date a
"Record Date"), and interest payable at Maturity will be paid to the Person to
whom said principal sum is payable.
This Note is subordinate and junior in right of payment, to the
extent set forth in the Indenture, to all Senior Indebtedness (as hereinafter
defined) of the Company.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity,
redemption or repayment) payable in U.S. dollars will be paid by check mailed to
the Person entitled thereto at his last address as it appears on the Security
Register or, at the option of the Company, by wire transfer to an
<PAGE>
4
account maintained by such Person with a bank located in the United States.
Notwithstanding the foregoing, a Holder of $10,000,000 or more in aggregate
principal amount of Notes of like tenor and terms (or the Holder of the
equivalent thereof in a Specified Currency) shall be entitled to receive
interest payments (other than at Maturity, redemption or repayment) by wire
transfer in immediately available funds, but only if appropriate instructions
have been received in writing by the Paying Agent on or prior to the applicable
Record Date for such payment of interest. Payment of the principal of and any
premium and interest on this Note due to the Holder hereof at Maturity payable
in U.S. dollars will be paid in immediately available funds upon presentation of
this Note at the corporate trust office of Chemical Bank, as paying agent
("Paying Agent"), in New York, New York, provided that this Note is presented to
the Paying Agent in time for the Paying Agent to make such payments in such
funds in accordance with its normal procedures.
Payments of principal, premium, if any, and interest to be made in a
Specified Currency will be paid by wire transfer of immediately available funds
to a designated account maintained with a bank located in the country issuing
the Specified Currency as shall have been designated at least 15 calendar days
prior to the payment date by the Holder of this Note. If such wire transfer
instructions are not so provided, payments of principal of, premium, if any, and
interest on this Note will be made by check drawn upon a bank located in the
financial center in the country issuing the Specified Currency (or, if this Note
is denominated in European Currency Units ("ECUs"), a bank located
<PAGE>
5
in the financial center of any country that issues a component currency).
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Trustee at its corporate trust
office in New York, New York and, unless revoked by written notice to the Paying
Agent received by the Paying Agent on or prior to the Record Date immediately
preceding the applicable Interest Payment Date or the fifteenth calendar day
preceding Maturity, shall remain in effect with respect to any further payments
with respect to this Note payable to such Holder.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon payments will be borne by the Holder or Holders
of this Note in respect of which payments are made.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency (other than ECUs) and such Specified Currency is
not available due to the imposition of exchange controls or other circumstances
beyond the control of the Company or is no longer used by the government of the
country issuing such currency or for the settlement of transactions by public
institutions within the international banking community, the Company will be
entitled to satisfy its obligations to the Holder of this Note by making payment
in U.S. dollars on the basis of the most recently available exchange rate as
specified by the Exchange Rate Agent as provided herein. If the principal of
and any premium and interest on this Note is payable in ECUs
<PAGE>
6
and ECUs are not available due to the imposition of exchange controls or other
circumstances beyond the Company's control or are no longer used in the European
Monetary System, then the Company will be entitled to satisfy its obligations
under this Note by making payments in U.S. dollars on the basis of the most
recently available exchange rate as specified by the Company or its agent as
provided herein.
Any Interest Payment Date which is not a Business Day shall be the
next succeeding Business Day with the same force and effect as if payment had
been made on the due date and no interest shall accrue for the period from and
after such date. Any payment of principal, premium, if any, or interest on the
Maturity of this Note which is due on any day which is not a Business Day need
not be made on such day, but may be made on the next succeeding Business Day
with the same force and effect as if made on the due date and no interest shall
accrue for the period from and after such date.
"Business Day" shall mean any day other than a Saturday or Sunday
which is not a day on which banking institutions are generally authorized or
required by law or regulation to close in The City of New York and (a) in the
event that this Note is denominated in a Specified Currency (other than ECUs),
in the financial center of the country issuing the Specified Currency and (b) if
this Note is denominated in ECUs, in the financial center of each country that
issues a component currency of the ECU and that is a non-ECU settlement day.
<PAGE>
7
Additional provisions of this Note are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, BARNETT BANKS, INC. has caused this instrument
to be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION BARNETT BANKS, INC.
This Note is one of a designated series of
Debt Securities described in the Indenture By:
referred to on the reverse hereof.
CHEMICAL BANK, as Trustee,
Attest:
By:
Authorized Officer Assistant Secretary
[SEAL]
<PAGE>
8
[Form of Reverse of Subordinated Fixed Rate Note]
BARNETT BANKS, INC.
MEDIUM-TERM FIXED RATE NOTE, SERIES D
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of Medium-Term Notes,
Series D of the Company (hereinafter called the "Notes"), issued or to be issued
in one or more series under and pursuant to an indenture, dated as of March 16,
1995 (as supplemented or amended from time to time, the "Indenture"), duly
executed and delivered by the Company to Chemical Bank, as Trustee (hereinafter
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of the series
designated on the face, limited in aggregate principal amount to $500,000,000.
This Note is a direct, unsecured obligation of the Company and ranks
pari passu with all outstanding subordinated indebtedness of the Company.
This Note is subordinate and junior in right of payment, to the
extent set forth in the Indenture, to all Senior Indebtedness of the Company.
In the event that the Company 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
<PAGE>
9
declaration 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 Notes, or in respect of any
redemption, retirement, purchase or other acquisition of any of the Notes.
"Senior Indebtedness" means (i) 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 the Indenture or thereafter created,
assumed or incurred, except (x) obligations evidenced by the Subordinated
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 Subordinated Securities, or to rank pari
passu in right of payment with the Subordinated Securities, (ii) whether
outstanding on March 16, 1995 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 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 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
<PAGE>
10
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 March 16, 1995.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property, (ii) any
proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (iii) any assignment by the Company for the benefit of creditors or
(iv) any other marshalling of the assets of the Company, all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will first 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 Notes. In such event, any payment or
distribution on account of the principal of or interest on the Notes, 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 the
subordination provisions with respect to the Notes, 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
<PAGE>
11
the subordination provisions) be payable or deliverable in respect of the Notes
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 Notes 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 or reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Notes, 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 Notes in contravention of
any of the terms of the 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 Notes, together with the holders of any
obligation of the Company ranking on a parity with
<PAGE>
12
the Notes, will be entitled to be repaid from the remaining assets of the
Company the amounts at that time due and owing on account of unpaid principal of
or any premium and interest on the Notes 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 Company ranking
junior to the Notes and such other obligations. By reason of such
subordination, in the event of the insolvency of the Company, holders of Senior
Indebtedness may receive more, ratably, and Holders of the Notes having a claim
pursuant to such Notes may receive less, ratably, than the other creditors of
the Company. Such subordination will not prevent the occurrence of an Event of
Default in respect of the Notes.
Unless otherwise specified on the face hereof, if this Note is
denominated in a Specified Currency, a Holder of this Note who, in accordance
with the provisions of this Note, elects to receive payments in U.S. dollars
will receive payments of principal, premium and interest in U.S. dollars
determined with reference to the highest bid quotation in The City of New York
received by the Exchange Rate Agent as of 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent unless the
Exchange Rate Agent solicited the sale of this Note on behalf of the Company)
selected by the Exchange Rate Agent for the purchase by the quoting dealer of
the Specified Currency for U.S. dollars for settlement on such payment date, in
an amount equal to the aggregate amount of the Specified Currency payable to all
Holders
<PAGE>
13
of Notes electing to receive U.S. dollar payments on such payment date and at
which the applicable dealer commits to execute a contract. If three such bid
quotations are not available, payments will be made in the Specified Currency.
All currency exchange costs associated with any payments in U.S. dollars will be
borne by the Holder of the Note by deductions from such payments.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency and, due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Specified Currency
is not available or is no longer used by the government of the country issuing
such currency or for the settlement of transactions by public institutions
within the international banking community at the time of any scheduled payment
of principal, premium or interest to be made in the Specified Currency, then the
Company shall be entitled to satisfy its obligations hereunder by making such
payment in U.S. dollars. Any such payment made in U.S. dollars pursuant to the
preceding sentence shall be made on the basis of the noon buying rate in The
City of New York for cable transfers of the Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the second Business Day prior to such payment, or if such Market
Exchange Rate is not then available, on the basis of the most recently available
Market Exchange Rate. Any payment under such circumstances in U.S. dollars
where required payment is in a Specified Currency will not constitute a default
under the Indenture.
<PAGE>
14
If the Specified Currency is in ECUs and ECUs are unavailable due to
the imposition of exchange controls or other circumstances beyond the Company's
control or are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars until ECUs are again
available or so used. The amount of each payment in U.S. dollars shall be
computed on the basis of the equivalent of the ECU in U.S. dollars, determined
as described below, as of the second Business Day prior to the date on which
such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Company or such agent on the basis of the most recently
available Market Exchange Rate for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
Components are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the appropriate amounts of the consolidated component
currencies expressed in such single currency. If any Component
<PAGE>
15
is divided into two or more currencies, the amount of the original component
currency shall be replaced by the appropriate amounts of such two or more
currencies, the sum of which shall be equal to the amount of the original
component currency.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Notes at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
<PAGE>
16
If so provided on the face of this Note, this Note may be redeemed
by the Company on and after the date so indicated on the face hereof. On and
after the date, if any, from which this Note may be redeemed, this Note may be
redeemed in whole or in part, at the option of the Company at a redemption price
equal to the product of the principal amount of this Note to be redeemed
multiplied by the Redemption Percentage. The Redemption Percentage shall
initially equal the Initial Redemption Percentage specified on the face of this
Note, and shall decline at each anniversary of the initial date that this Note
is redeemable by the amount of the Annual Redemption Percentage Reduction
specified on the face of this Note, until the Redemption Percentage is equal to
100%.
If so provided on the face of this Note, this Note will be repayable
in whole or in part in increments of $1,000 or, in the case of non-U.S. dollar
denominated Notes, of an amount equal to the integral multiples specified on the
face hereof under Authorized Denominations (or, if no such reference is made, an
amount equal to the minimum Authorized Denomination) provided that the remaining
principal amount of any Note surrendered for partial repayment shall be at least
$1,000 or, in the case of Notes denominated in a Specified Currency, the minimum
Authorized Denomination specified on the face hereof, on any Business Day on or
after the Initial Date on which this Note is repayable at the option of the
Holder specified on the face hereof, at the option of the Holder, at 100% of the
principal amount to be repaid, plus accrued interest, if any, to the repayment
date. In order for the exercise of the option to be effective and the Notes to
be
<PAGE>
17
repaid, the Company must receive at the applicable address of the Paying Agent
set forth below or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, on or before the fifteenth, but not
earlier than the thirtieth calendar day, or, if such day is not a Business Day,
the next succeeding Business Day, prior to the repayment date, either (i) this
Note, with the form below entitled "Option to Elect Repayment" duly completed,
or (ii) a telegram, telex, facsimile transmission, or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States of America
setting forth (a) the name, address, and telephone number of the Holder of this
Note, (b) the principal amount of this Note and the amount of this Note to be
repaid, (c) the certificate number or a description of the tenor and terms of
this Note, (d) a statement that the option to elect repayment is being exercised
thereby, and (e) a guarantee stating that the Company will receive this Note,
with the form below entitled "Option to Elect Repayment" duly completed, not
later than five Business Days after the date of such telegram, telex, facsimile
transmission, or letter (and this Note and form duly completed are received by
the Company by such fifth Business Day). Any such election shall be
irrevocable. The address to which such deliveries are to be made is Chemical
Bank, Attention: Corporate Trust Administration, 450 West 33rd Street, 15th
Floor, New York, New York 10001 (or at such other places as the Company shall
notify the Holders of the Notes). All questions as to the validity, eligibility
(including time of receipt) and acceptance
<PAGE>
18
of any Note for repayment will be determined by the Company, whose determination
will be final and binding.
The Notes are issuable in global or definitive form without coupons
in denominations of $1,000 and integral multiples of $1,000 in excess thereof
or, if the Note is denominated in a Specified Currency, in the denominations
specified on the face hereof. Upon due presentment for registration of transfer
of this Note at the office or agency of the Company in any place where the
principal of, premium, if any, and interest on this Note are payable, a new Note
or Notes in authorized denominations in U.S. dollars or the Specified Currency,
as the case may be, for an equal aggregate principal amount and like tenor will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture and to the limitations described below if applicable,
without charge except for any tax or other governmental charge imposed in
connection therewith.
If this Note is a Global Note (as specified on the face hereof),
this Note is exchangeable only if (x) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for this Global Note or if
at any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form or (z) an Event of Default, or an event which with notice or
lapse of time would be an Event of Default, with respect to the Notes
represented hereby has occurred and is continuing. If this Note is exchangeable
pursuant to the preceding sentence, it shall be
<PAGE>
19
exchangeable for definitive Notes in registered form, bearing interest (if any)
at the same rate or pursuant to the same formula, having the same date of
issuance, redemption provisions, if any, Specified Currency, Stated Maturity and
other terms and of differing denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the places, at the respective times, at the rate and in
the currency herein prescribed.
The Company, the Trustee and any paying agent may deem and treat the
Holder hereof as the absolute owner of this Note at such Holder's address as it
appears on the Security Register as kept by the Trustee or duly authorized agent
of the Company (whether or not this Note shall be overdue), for the purpose of
receiving payment of or on account hereof and for all other purposes, and
neither the Company nor the Trustee nor any paying agent shall be affected by
any notice to the contrary. All payments made to or upon the order of such
registered Holder shall, to the extent of the sum or sums paid, effectually
satisfy and discharge liability for moneys payable on this Note.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
<PAGE>
20
-----------------------------------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the repayment date, to the undersigned, at _____________________
____________________________________________________________.
(Please print or typewrite name and address of the undersigned.)
For this Note to be repaid the Company must receive at the
applicable address of the Paying Agent set forth above or at such other place or
places of which the Company shall from time to time notify the Holder of the
within Note, on or before the fifteenth, but not earlier than the thirtieth,
calendar day, or, if such day is not a Business Day, the next succeeding
Business Day, prior to the repayment date, (i) this Note, with this "Option to
Elect Repayment" form duly completed, or (ii) a telegram, telex, facsimile
transmission, or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States of America setting forth (a) the name, address, and
telephone number of the Holder of the Note, (b) the principal amount of the Note
and the amount of the Note to be repaid, (c) the certificate number or a
description of the tenor and terms of this Note, (d) a statement that the option
to elect
<PAGE>
21
repayment is being exercised thereby, and (e) a guarantee stating that the Note
to be repaid with the form entitled "Option to Elect Repayment" on the reverse
of the Note duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission, or
letter (and such Note and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples specified on the face hereof under
Authorized Denominations (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination)) which the Holder elects to have repaid:
_____________________________; and specify the denomination or denominations
(which shall be $1,000 or an integral multiple of $1,000 in excess thereof or,
if the Note is denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion of
the within Note not being repaid (in the absence of any specification, one such
Note will be issued for the portion not being repaid):
_____________________
Date:_____________________ _______________________________________
Notice: The signature to this Option to
Elect Repayment must correspond
with the name as written upon the face of the
Note in every particular without alteration
or enlargement or any other change
whatsoever.
___________________________________
<PAGE>
22
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-- as tenants UNIF GIFT MIN ACT-- ______Custodian _________________
in common (Cust) (Minor)
TEN ENT-- as tenants by the entireties
JT TEN -- as joint with right of Under Uniform Gifts to Minors Act
survivorship and not as
tenants in common ---------------------------------
and not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
23
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and does hereby irrevocably constitute and appoint
- --------------------------------------------------------------------------------
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
Dated: ________________________
- --------------------------------------------------
_______________________________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
