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As filed with the Securities and Exchange Commission on August 13, 1999
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNION PLANTERS CORPORATION
(Exact name of registrant as specified in its charter)
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STATE OF TENNESSEE 62-0859007
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
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UNION PLANTERS ADMINISTRATIVE CENTER
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(901) 580-6000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal and executive offices)
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E. JAMES HOUSE, JR., ESQ.
SECRETARY AND MANAGER OF THE LEGAL DEPARTMENT
UNION PLANTERS CORPORATION
UNION PLANTERS ADMINISTRATIVE CENTER
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(901) 580-6584
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
CHERYL W. PATTERSON, ESQ. DANIEL M. ROSSNER, ESQ.
WYATT, TARRANT & COMBS BROWN & WOOD LLP
CRESCENT CENTER ONE WORLD TRADE CENTER
6075 POPLAR AVENUE, SUITE 650 NEW YORK, NEW YORK 10048-0057
MEMPHIS, TENNESSEE 38119-4721 (212) 839-5300
(901) 537-1000
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _________________
If delivery of the prospectus is expected to be made pursuant to Rule
434 under the Securities Act, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(2)
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Debt Securities(3)................................................ $600,000,000 $166,800
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(1) Estimated solely for purposes of computing the registration fee. The
proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any Debt Securities issued at a
discount.
(3) In addition to any Debt Securities that may be issued directly under this
registration statement, there are being registered hereunder an
indeterminate amount of Debt Securities as may be issued upon conversion or
exchange of Debt Securities. No separate consideration will be received for
any Debt Securities so issued upon such conversion or exchange.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 13, 1999
PROSPECTUS
UNION PLANTERS CORPORATION
[LOGO]
MAY OFFER --
$600,000,000
Debt Securities
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Union Planters will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus and the
accompanying prospectus supplement carefully before you invest.
- --------------------------------------------------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
This prospectus is dated August ___, 1999
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TABLE OF CONTENTS
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SUMMARY...........................................................................................................3
Union Planters................................................................................................3
The Securities Union Planters May Offer.......................................................................3
Debt Securities...............................................................................................3
General Indenture Provisions that Apply to Senior and Subordinated Debt Securities............................4
Events of Default that Apply to Senior Debt...................................................................4
Events of Default that Apply to Subordinated Debt.............................................................5
Remedies......................................................................................................5
Consolidated Ratio of Earnings to Fixed Charges...............................................................5
UNION PLANTERS....................................................................................................5
USE OF PROCEEDS...................................................................................................7
DESCRIPTION OF DEBT SECURITIES....................................................................................7
General.......................................................................................................7
Denominations.................................................................................................8
Subordination.................................................................................................8
Limitations on Liens and Disposition of Stock of Principal Banking Subsidiaries...............................9
Consolidation, Merger or Sale................................................................................11
Modification of Indentures...................................................................................11
Events of Default............................................................................................11
Covenants....................................................................................................12
Payment and Transfer.........................................................................................13
Global Securities............................................................................................13
Defeasance...................................................................................................13
The Trustee..................................................................................................13
PLAN OF DISTRIBUTION.............................................................................................14
By Agents....................................................................................................14
By Underwriters..............................................................................................14
Direct Sales.................................................................................................15
General Information..........................................................................................15
WHERE YOU CAN FIND MORE INFORMATION..............................................................................15
LEGAL OPINIONS...................................................................................................16
EXPERTS..........................................................................................................16
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SUMMARY
This summary provides a brief overview of Union Planters and the most
significant terms of the offered securities. For a more complete understanding
of the terms of the offered securities, before making your investment decision,
you should carefully read:
- this prospectus, which explains the general terms of the securities
that Union Planters may offer;
- the accompanying prospectus supplement, which (1) explains the
specific terms of the securities being offered and (2) updates and
changes information in this prospectus; and
- the documents referred to in "Where You Can Find More Information" on
page 15 for information on Union Planters, including its financial
statements.
UNION PLANTERS
Union Planters is a bank holding company organized under the laws of
the State of Tennessee. At June 30, 1999, Union Planters was among the 30
largest banking institutions in the United States based on assets, with $32.3
billion in assets and $3.0 billion of shareholders' equity.
Union Planters conducts its business through Union Planters Bank,
National Association, its principal bank subsidiary, and a number of other
banking and banking-related subsidiaries. Through its various subsidiaries,
Union Planters provides a diversified range of financial services, maintaining
banking offices in the states of Alabama, Arkansas, Florida, Illinois, Indiana,
Iowa, Kentucky, Louisiana, Mississippi, Missouri, Tennessee and Texas.
Union Planters' common stock, par value $5.00 per share, is traded on
The New York Stock Exchange under the symbol "UPC". Union Planters' principal
executive offices are located at Union Planters Administrative Center, 7130
Goodlett Farms Parkway, Memphis, Tennessee 38018, and its telephone number is
(901) 580-6000.
THE SECURITIES UNION PLANTERS MAY OFFER
Union Planters may use this prospectus to offer up to $600,000,000 of
debt securities.
A prospectus supplement will describe the specific types, amounts,
prices, and detailed terms of any of the debt securities.
DEBT SECURITIES
The debt securities are unsecured general obligations of Union Planters
in the form of senior or subordinated debt. The senior debt securities will be
unsecured and rank equally with all of Union Planters' other senior and
unsubordinated debt. The subordinated debt securities will be unsecured and will
be subordinated to all of Union Planters' Senior Indebtedness (as defined below
under "Description of Debt Securities -- Subordination"). In certain events of
insolvency, the subordinated debt securities will also be subordinated to all of
Union Planters' Other Financial Obligations (as defined below under "Description
of Debt Securities -- Subordination"). As of June 30, 1999, Union Planters had
no Senior Indebtedness or Other Financial Obligations outstanding. As of June
30, 1999, Union Planters had approximately $382.9 million outstanding of
indebtedness ranking equally upon liquidation with the subordinated debt
securities.
The senior and subordinated debt will be issued under separate
indentures between Union Planters and The First National Bank of Chicago, as
trustee. The trustees under the indentures will be banks or trust companies.
Below are summaries of the general features of the debt securities from these
indentures. For a more detailed description of these features, see "Description
of Debt Securities" below. You are also encouraged to read the indentures, which
are filed as exhibits to the registration statement of which this prospectus is
a part. You can receive copies of these documents by following the directions
under "Where You Can Find More Information" on page 15.
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GENERAL INDENTURE PROVISIONS THAT APPLY TO SENIOR AND SUBORDINATED DEBT
SECURITIES
- The indentures do not limit the amount of debt that Union Planters
may issue or provide holders any protection should there be a highly
leveraged transaction, recapitalization or restructuring involving
Union Planters. However, the senior debt indenture does limit Union
Planters' ability to sell, transfer or pledge the stock of any
banking subsidiary that meets the financial thresholds in the
indenture. These thresholds are described below under "Description of
Debt Securities."
- Each indenture allows for different types of debt securities,
including indexed securities, to be issued in series.
- The indentures allow Union Planters to merge or to consolidate with
another company, or sell all or substantially all of its assets to
another company. If any of these events occurs, the other company
would be required to assume Union Planters' responsibilities for the
debt securities. Unless the transaction results in an event of
default, Union Planters will be released from all liabilities and
obligations under the debt securities when the successor company
assumes Union Planters' responsibilities.
- The indentures provide that holders of a majority of the total
principal amount of the senior debt securities outstanding in any
series and holders of a majority of the total principal amount of the
subordinated debt securities outstanding in any series may vote to
change Union Planters' obligations or your rights concerning those
securities. However, some changes to the financial terms of a
security, including changes in the payment of principal or interest
on that security or the currency of payment, cannot be made unless
every holder of that security consents to the change.
- Union Planters may satisfy its obligations under the senior debt
securities or be released from its obligation to comply with the
limitations discussed above at any time by depositing sufficient
amounts of cash or U.S. government securities with the trustee to pay
Union Planters' obligations under the particular senior debt
securities when due.
- The indentures govern the actions of the trustee with regard to the
debt securities, including when the trustee is required to give
notices to holders of the securities and when lost or stolen debt
securities may be replaced.
EVENTS OF DEFAULT THAT APPLY TO SENIOR DEBT
The events of default specified in the senior debt indenture include:
- failure to pay required interest for 30 days;
- failure to pay principal when due;
- failure to make a required sinking fund payment when due;
- failure to perform other covenants for 60 days after notice;
- acceleration of the senior debt securities of any other series or any
indebtedness for borrowed money of Union Planters and certain
subsidiaries, in each case exceeding $5,000,000 in an aggregate
principal amount; and
- certain events of insolvency, bankruptcy or reorganization involving
Union Planters or certain subsidiaries, whether voluntary or not.
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EVENTS OF DEFAULT THAT APPLY TO SUBORDINATED DEBT
The only events of default specified in the subordinated debt indenture
are certain events of insolvency, bankruptcy or reorganization involving Union
Planters.
REMEDIES
If there were an event of default, the trustee or holders of 25% of the
principal amount of debt securities outstanding in a series could demand that
the principal of that series be paid immediately. However, holders of a majority
in principal amount of the securities in that series could rescind that
acceleration of the debt securities.
The subordinated debt indenture does not provide for any right of
acceleration of the payment of principal of a series of subordinated debt
securities upon a default in the payment of principal or interest or in the
performance of any covenant or agreement in the subordinated debt securities or
in the subordinated debt indenture. However, in the event of a default in the
payment of principal or interest, the holder of any debt security shall have the
right to institute a suit for the collection of such overdue payment.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the consolidated ratio of earnings to fixed
charges of Union Planters for each of the five most recent fiscal years and the
six-month periods ended June 30, 1999 and 1998, respectively. The consolidated
ratio of earnings to fixed charges is a measure of Union Planters' ability to
generate earnings sufficient to pay the fixed expenses of its debt.
These computations include Union Planters and its subsidiaries. For
purposes of computing this ratio, earnings consist of pre-tax income from
continuing operations plus fixed charges and amortization of capitalized
interest, less interest capitalized. Fixed charges consist of interest expensed
and capitalized, amortization of debt issuance costs, and Union Planters'
estimate of the interest component of rental expense. These ratios are presented
both including and excluding interest on deposits.
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SIX MONTHS ENDED
JUNE 30, YEARS ENDED DECEMBER 31,
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1999 1998 1998 1997 1996 1995 1994
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Including Interest on Deposits............ 1.59x 1.52x 1.33x 1.48x 1.44x 1.52x 1.49x
Excluding Interest on Deposits............ 4.12x 3.55x 2.68x 3.35x 3.14x 3.93x 4.07x
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UNION PLANTERS
Union Planters is a bank holding company organized under the laws of
the State of Tennessee. At June 30, 1999, Union Planters was among the 30
largest banking institutions in the United States based on assets, with $32.3
billion in assets and $3.0 billion of shareholders' equity.
Union Planters conducts its business through Union Planters Bank, its
principal bank subsidiary, and a number of other banking and banking-related
subsidiaries. Through its various subsidiaries, Union Planters provides a
diversified range of financial services, maintaining banking offices in the
states of Alabama, Arkansas, Florida, Illinois, Indiana, Iowa, Kentucky,
Louisiana, Mississippi, Missouri, Tennessee and Texas.
Historically, acquisitions have been an important part of the expansion
of Union Planters' business. During the period beginning January 1, 1994 and
ending July 16, 1999, Union Planters completed the acquisition of 47
institutions with approximately $28.7 billion in total assets, purchased an
additional 85 branch locations and assumed related deposit liabilities of
approximately $3.1 billion.
On July 16, 1999, Union Planters Bank completed the acquisition of
Republic Banking Corp. of Florida (Nasdaq:RBCF), the parent company of Republic
National Bank of Miami, Miami, Florida. In the transaction Union
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Planters Bank acquired Republic National Bank's 25 Miami-Dade and two Broward
County banking centers and approximately $1.5 billion in assets, $1.0 billion in
loans and $1.3 billion in total deposits. The purchase price was approximately
$410 million in cash. Union Planters currently estimates goodwill and other
intangibles resulting from the acquisition to be $267 million, subject to change
when the final purchase accounting adjustments are completed.
As of the date of this prospectus, Union Planters does not have any
acquisitions pending. While Union Planters expects to continue to take advantage
of the consolidation of the financial services industry by developing its
franchise through the acquisition of financial institutions, Union Planters
anticipates some reduction in its acquisition activity. These plans may change
in the future. Any future acquisitions are virtually certain to require payment
by Union Planters of consideration in excess of the book value of the underlying
net assets acquired, will normally result in the issuance of additional shares
of Union Planters capital stock, may require the incurrence of additional
indebtedness by Union Planters, and could have a dilutive effect on the earnings
or book value per share of Union Planters common stock. Moreover, Union Planters
could incur significant acquisition-related charges incidental to making
acquisitions.
The recent decrease in acquisition activity has given Union Planters an
opportunity to continue the assimilation of acquired institutions, to eliminate
redundant properties and operations, to instill its culture into acquired
entities and to evaluate whether the anticipated economies of scale and other
expected benefits of its acquisition program are in fact being realized.
Because Union Planters is a holding company, its rights and the rights
of its creditors, including the holders of the debt securities, to participate
in the assets of any subsidiary upon the liquidation or reorganization of that
subsidiary will be subject to the prior claims of the creditors of that
subsidiary (including, in the case of a subsidiary bank, its depositors), except
to the extent that Union Planters may itself be a creditor with recognized
claims against the subsidiary. Claims on subsidiaries of Union Planters by
creditors other than Union Planters include substantial obligations with respect
to deposit liabilities, federal home loan bank advances, securities sold under
repurchase agreements, medium-term notes, long-term debt and other borrowings.
There are regulatory limitations on the payment of dividends by Union
Planters Bank or any other banking subsidiary directly or indirectly to Union
Planters. Federal and state authorities also have the right to further limit the
payment of dividends by Union Planters Bank or any other banking subsidiary.
In addition, there are various statutory and regulatory limitations on
the extent to which Union Planters Bank or any other banking subsidiary may
finance or otherwise transfer funds to Union Planters or its non-banking
subsidiaries, either in the form of loans, extensions of credit, investments or
asset purchases.
- Such transfers by Union Planters Bank or any other banking subsidiary
to Union Planters or any non-banking subsidiary are limited to 10% of
the banking subsidiary's capital and surplus, and with respect to
Union Planters and all such non-banking subsidiaries, to an aggregate
of 20% of the banking subsidiary's capital and surplus.
- Furthermore, loans and extensions of credit are required to be
secured by collateral having a specified minimum value and are
required to be on terms and conditions consistent with safe and sound
banking practices.
Under the policy of the Board of Governors of the Federal Reserve
System, a bank holding company is required to act as a source of strength to its
subsidiary banks and to commit resources to support such banks. As a result of
that policy, Union Planters may be required to commit resources to Union
Planters Bank or any other banking subsidiary in circumstances in which it might
not do so absent such policy. Further, federal bankruptcy law provides that in
the event of the bankruptcy of Union Planters, any commitment by Union Planters
to regulators to maintain the capital of a banking subsidiary will be assumed by
the bankruptcy trustee and entitled to priority of payment.
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USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement,
Union Planters will use the net proceeds from the sale of the offered securities
for general corporate purposes, which may include making capital contributions
or extensions of credit to its existing and future banking and non-banking
subsidiaries, repaying outstanding loans and future debt maturities, funding
possible acquisitions of other financial institutions and repurchasing Union
Planters' common stock.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be direct unsecured general obligations of
Union Planters and will be either senior or subordinated debt. The debt
securities will be issued under separate indentures between Union Planters and
The First National Bank of Chicago. Senior debt securities will be issued under
a senior debt indenture and subordinated debt securities will be issued under a
subordinated debt indenture. The senior debt indenture and the subordinated debt
indenture are sometimes referred to in this prospectus individually as an
"indenture" and collectively as the "indentures." The forms of the indentures
have been filed with the SEC as exhibits to the registration statement of which
this prospectus forms a part.
The following briefly summarizes the material provisions of the
indentures and the debt securities, other than pricing and related terms
disclosed in the accompanying prospectus supplement. The summary is not
complete. You should read the more detailed provisions of the applicable
indenture for provisions that may be important to you. So that you can easily
locate these provisions, the numbers in parenthesis below refer to sections in
the applicable indenture or, if no indenture is specified, to sections in each
of the indentures. Whenever particular sections or defined terms of the
applicable indenture are referred to, such sections or defined terms are
incorporated into this prospectus by reference, and the statement in this
prospectus is qualified by that reference.
GENERAL
The senior debt securities will be unsecured and rank equally with all
of Union Planters' other senior and unsubordinated debt. The subordinated debt
securities will be unsecured and will be subordinated to all of Union Planters'
Senior Indebtedness (as defined below under "-- Subordination"). In certain
events of insolvency, the subordinated debt securities will also be subordinated
to all of Union Planters' Other Financial Obligations (as defined below under
"-- Subordination"). As of June 30, 1999, Union Planters had no Senior
Indebtedness or Other Financial Obligations outstanding. As of June 30, 1999,
Union Planters had approximately $382.9 million outstanding of indebtedness
ranking equally upon liquidation with the subordinated debt securities.
A prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- The title of the debt securities and whether the debt securities will
be senior or subordinated debt;
- The total principal amount of the debt securities;
- The percentage of the principal amount at which the debt securities
will be issued and any payments due if the maturity of the debt
securities is accelerated;
- The dates on which the principal of the debt securities will be
payable;
- The interest rate which the debt securities will bear, or the method
for determining the rate, and the interest payment dates for the debt
securities;
- Any mandatory or optional redemption provisions;
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- Any sinking fund or other provisions that would obligate Union
Planters to repurchase or otherwise redeem the debt securities;
- Any provisions granting special rights to holders when a specified
event occurs;
- Any changes to or additional events of defaults or covenants;
- Any special tax implications of the debt securities, including
provisions for original issue discount securities, if offered; and
- Any other terms of the debt securities.
Neither indenture limits the amount of debt securities that may be
issued. Each indenture allows debt securities to be issued up to the principal
amount that may be authorized by Union Planters and may be in any currency or
currency unit designated by Union Planters. (Sections 3.01 and 3.03.)
DENOMINATIONS
Unless otherwise provided in the accompanying prospectus supplement,
debt securities will be issued in registered form in denominations of $1,000
each and any integral multiples thereof. (Section 3.02.)
SUBORDINATION
Under the subordinated debt indenture, payment of the principal,
interest and any premium on the subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness (as defined below). The subordinated debt indenture provides
that no payment of principal, interest and any premium on the subordinated debt
securities may be made unless Union Planters pays in full the principal,
interest, any premium or any other amounts on any Senior Indebtedness then due.
Also, no payment of principal, interest or any premium on the subordinated debt
securities may be made if an event of default with respect to any Senior
Indebtedness has occurred and is continuing, which permits the holders of the
Senior Indebtedness to accelerate the maturity of such Senior Indebtedness, or
if any judicial proceeding is pending with respect to any such default.
If there is any insolvency, bankruptcy, liquidation or other similar
proceeding relating to Union Planters, then all Senior Indebtedness must be paid
in full before any payment may be made to any holders of subordinated debt
securities. If after payment of the Senior Indebtedness there remains any
amounts available for distribution and any person entitled to payment pursuant
to the terms of Other Financial Obligations has not been paid in full all
amounts due or to become due on the Other Financial Obligations, then these
remaining amounts will first be used to pay in full the Other Financial
Obligations before any payment may be made to the holders of subordinated debt
securities. Holders of subordinated debt securities must deliver any payments
received by them to the holders of Senior Indebtedness and Other Financial
Obligations until all Senior Indebtedness and Other Financial Obligations are
paid in full.
The subordinated debt indenture will not limit the amount of Senior
Indebtedness or Other Financial Obligations that Union Planters may incur.
"Senior Indebtedness" means any of the following, whether incurred
before or after the execution of the subordinated debt indenture:
(1) all obligations of Union Planters for the repayment of
borrowed money,
(2) all obligations of Union Planters for the deferred purchase
price of property, but excluding trade accounts payable in the
ordinary course of business,
(3) all capital lease obligations of Union Planters, and
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(4) all obligations of the type referred to in clauses (1) through
(3) of other persons that Union Planters has guaranteed or
that is otherwise its legal liability;
but Senior Indebtedness does not include:
(a) the subordinated debt securities; and
(b) indebtedness that by its terms is subordinated to, or ranks on an
equal basis with, the subordinated debt securities.
"Other Financial Obligations" means all obligations of Union Planters
to make payment pursuant to the terms of financial instruments, such as:
(1) securities contracts and foreign currency exchange contracts,
(2) derivative instruments, such as swap agreements, cap
agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange agreements, options, commodity
futures contracts, and commodity option contracts, and
(3) similar financial instruments;
but Other Financial Obligations does not include:
(a) Senior Indebtedness, or
(b) indebtedness that by its terms is subordinated to, or ranks on an
equal basis with, the subordinated debt securities.
LIMITATIONS ON LIENS AND DISPOSITION OF STOCK OF PRINCIPAL BANKING SUBSIDIARIES
The senior debt indenture provides that Union Planters will not, and
will not permit any Subsidiary to, incur, issue, assume or guarantee any
indebtedness for money borrowed if such indebtedness is secured by a pledge of,
lien on, or security interest in any shares of Voting Stock of any Significant
Subsidiary, without providing that each series of senior debt securities and, at
Union Planters' option, any other Senior Indebtedness ranking equally with the
senior debt securities, will be secured equally and ratably with such
indebtedness. This limitation will not apply to indebtedness secured by a pledge
of, lien on or security interest in any shares of Voting Stock of any
corporation at the time it becomes a Significant Subsidiary. (Senior debt
indenture, Section 12.06.) The subordinated debt indenture does not contain a
similar provision.
The senior debt indenture also provides that Union Planters will not
sell, assign, transfer or otherwise dispose of any shares of, securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock (other than directors' qualifying shares) of any
Principal Banking Subsidiary and will not permit any Principal Banking
Subsidiary to issue (except to Union Planters) any shares of, securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of any Principal Banking Subsidiary, except for sales,
assignments, transfers or other dispositions that:
- are for fair market value on the date thereof, as determined by the
Board of Directors of Union Planters (which determination shall be
conclusive) and, after giving effect to such disposition and to any
possible dilution, Union Planters will own not less than 80% of the
shares of Voting Stock of such Principal Banking Subsidiary then
issued and outstanding free and clear of any security interest;
- are made in compliance with an order of a court or regulatory
authority of competent jurisdiction, as a condition imposed by any
such court or authority permitting the acquisition by Union Planters,
directly or indirectly, of any other banking institution or entity
the activities of which are legally permissible
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for a bank holding company or a subsidiary thereof to engage in, or
as an undertaking made to such authority in connection with such an
acquisition;
- are made where such Principal Banking Subsidiary, having obtained any
necessary regulatory approvals, unconditionally guarantees payment
when due of the principal of and premium, if any, and interest on the
senior debt securities; or
- are made to Union Planters or any wholly owned Subsidiary if such
wholly owned Subsidiary agrees to be bound by this covenant and Union
Planters agrees to maintain such wholly owned Subsidiary as a wholly
owned Subsidiary.
Notwithstanding the foregoing, any Principal Banking Subsidiary may be
merged into or consolidated with another banking institution organized under the
laws of the United States, any state or the District of Columbia if, after
giving effect to such merger or consolidation, Union Planters or any wholly
owned Subsidiary owns at least 80% of the Voting Stock of such other banking
institution then issued and outstanding free and clear of any security interest
and if, immediately after giving effect thereto and treating any such resulting
institution thereafter as a Principal Banking Subsidiary and as a Subsidiary for
purposes of the senior debt indenture, no event of default, and no event that,
after the giving of notice or lapse of time or both, would become an event of
default under the senior debt indenture, has occurred and is continuing.
The subordinated debt indenture does not contain any of the foregoing
limitations on the creation of liens or disposition of Principal Banking
Subsidiaries and these limitations are not for the benefit of any series of
subordinated debt securities.
"Principal Banking Subsidiary" means any Subsidiary, including the
Principal Banking Subsidiary's Subsidiaries, which (1) is principally engaged in
the banking business, and (2) meets any of the following conditions:
- Union Planters' and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 30% of the total assets of Union
Planters and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year;
- Union Planters' and its other Subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of the Subsidiary
exceeds 30% of the total assets of Union Planters and its
Subsidiaries consolidated as of the end of the most recently
completed fiscal year; or
- Union Planters' and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the
Subsidiary exceeds 30% of such income of Union Planters and its
Subsidiaries consolidated for the most recently completed fiscal
year.
(Senior debt indenture, Section 1.01.) As of the date of this prospectus, Union
Planters Bank is the sole Principal Banking Subsidiary of Union Planters.
"Significant Subsidiary" means a Subsidiary, including its
Subsidiaries, that meets any of the following conditions:
- Union Planters' and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10% of the total assets of Union
Planters and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year;
- Union Planters' and its other Subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of the Subsidiary
exceeds 10% of the total assets of Union Planters and its
Subsidiaries consolidated as of the end of the most recently
completed fiscal year; or
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<PAGE> 13
- Union Planters' and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the
Subsidiary exceeds 10% of such income of Union Planters and its
Subsidiaries consolidated for the most recently completed fiscal
year.
(Senior debt indenture, Section 1.01.) As of the date of this prospectus, Union
Planters Bank is the sole Significant Subsidiary of Union Planters.
"Subsidiary" means any corporation of which securities entitled to
elect at least a majority of the corporation's directors shall at the time be
owned, directly or indirectly, by Union Planters, and/or one or more
Subsidiaries.
"Voting Stock" means capital stock the holders of which have general
voting power under ordinary circumstances to elect at least a majority of the
board of directors of a corporation, except capital stock that carries only the
right to vote conditioned on the happening of an event regardless of whether
such event shall have happened. (Senior debt indenture, Sections 1.01 and
12.06).
CONSOLIDATION, MERGER OR SALE
Each indenture generally permits a consolidation or merger between
Union Planters and another corporation. They also permit Union Planters to sell
all or substantially all of its property and assets. If this happens, the
remaining or acquiring corporation shall assume all of Union Planters'
responsibilities and liabilities under the indentures including the payment of
all amounts due on the debt securities and performance of Union Planters'
covenants in the indentures.
However, Union Planters will only consolidate or merge with or into any
other corporation or sell all or substantially all of its assets according to
the terms and conditions of the indentures. The remaining or acquiring
corporation will be substituted for Union Planters in the indentures with the
same effect as if it had been an original party to the indenture. Thereafter,
the successor corporation may exercise Union Planters' rights and powers under
any indenture, in Union Planters' name or in its own name. Any act or proceeding
required or permitted to be done by Union Planters' board of directors or any of
its officers may be done by the board or officers of the successor corporation.
If Union Planters merges with or into any other corporation or sells all or
substantially all of its assets, the surviving corporation in the merger or the
company to which the assets are sold will succeed to Union Planters' obligations
under the indentures and Union Planters will be released from all liabilities
and obligations under the indentures and under the debt securities. (Sections
10.01 and 10.02.)
MODIFICATION OF INDENTURES
Under each indenture, Union Planters' rights and obligations and the
rights of the holders of the debt securities of any series may be modified with
the consent of the holders of a majority in aggregate principal amount of the
outstanding debt securities of each series affected by the modification. No
modification of the principal or interest payment terms, and no modification
reducing the percentage required for modifications, is effective against any
holder without its consent. (Sections 11.01 and 11.02.)
EVENTS OF DEFAULT
The senior debt indenture provides that an "event of default" regarding
any series of senior debt securities will be any of the following:
- failure to pay interest on any debt security of such series for 30
days;
- failure to pay the principal or any premium on any debt security of
such series when due;
- failure to deposit any sinking fund payment when due by the terms of
a debt security of such series;
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<PAGE> 14
- failure to perform any other covenant in the indenture that continues
for 60 days after being given written notice;
- acceleration of the senior debt securities of any other series or any
other indebtedness for borrowed money of Union Planters or any
Significant Subsidiary (as defined above), in each case exceeding
$5,000,000 in an aggregate principal amount;
- certain events involving bankruptcy, insolvency or reorganization of
Union Planters or any Significant Subsidiary; or
- any other event of default included in any indenture or supplemental
indenture. (Section 5.01.)
The subordinated debt indenture provides that an "event of default"
regarding any series of subordinated debt securities will occur only upon
certain events involving bankruptcy, insolvency or reorganization of Union
Planters. A default in the payment of principal or interest or in the
performance of any covenant or agreement in the subordinated debt securities of
any series or in the subordinated debt indenture is not an event of default
under the subordinated debt indenture and does not provide for any right of
acceleration of the payment of principal of a series of subordinated debt
securities. However, in the event of a default in the payment of principal or
interest, the holder of any subordinated debt security shall have the right to
institute a suit for the collection of such overdue payment.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. The Trustee may withhold notice to the
holders of Debt Securities of any default (except in the payment of principal or
interest) if it considers such withholding of notice to be in the best interests
of the holders. (Section 6.02.)
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration. (Section 5.02.)
Other than its duties in case of a default, a trustee is not obligated
to exercise any of its rights or powers under any Indenture at the request,
order or direction of any holders, unless the holders offer the trustee
reasonable indemnity. (Section 6.01.) If they provide this reasonable
indemnification, the holders of a majority in principal amount of any series of
debt securities may direct the time, method and place of conducting any
proceeding or any remedy available to the trustee, or exercising any power
conferred upon the trustee, for any series of debt securities. (Section 5.12.)
COVENANTS
Under the indentures, Union Planters will:
- pay the principal, interest and any premium on the debt securities
when due;
- maintain a place of payment;
- deliver a report to the trustee at the end of each fiscal year
certifying as to the absence of events of default and to Union
Planters' compliance with the terms of the indentures; and
- deposit sufficient funds with any paying agent on or before the due
date for payment of any principal, interest or any premium.
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<PAGE> 15
PAYMENT AND TRANSFER
Principal, interest and any premium on fully registered securities will
be paid at designated places. Payment will be made by check mailed to the
persons in whose names the debt securities are registered on days specified in
the indentures or any prospectus supplement. Debt securities payments in other
forms will be paid at a place designated by Union Planters and specified in a
prospectus supplement. (Section 3.07.)
Fully registered securities may be transferred or exchanged at the
corporate trust office of the Trustee or at any other office or agency
maintained by Union Planters for such purposes, without the payment of any
service charge except for any tax or governmental charge. (Section 3.05.)
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in
the form of one or more global certificates that will be deposited with a
depositary identified in a prospectus supplement. Unless it is exchanged in
whole or in part for debt securities in definitive form, a global certificate
may generally be transferred only as a whole unless it is being transferred to
certain nominees of the depositary. (Section 2.03.)
Unless otherwise stated in any prospectus supplement, The Depository
Trust Company, New York, New York ("DTC") will act as depositary. Beneficial
interests in global certificates will be shown on, and transfers of global
certificates will be effected only through, records maintained by DTC and its
participants.
DEFEASANCE
Union Planters will be discharged from its obligations on the senior
debt securities of any series at any time if it deposits with the trustee
sufficient cash or government securities to pay the principal, interest, any
premium and any other sums due to the stated maturity date or a redemption date
of the senior debt securities of the series. Union Planters must also deliver to
the trustee an opinion of counsel to the effect that the holders of the senior
debt securities of that series will have no federal income tax consequences as a
result of such deposit. If this happens, the holders of the senior debt
securities of the series will not be entitled to the benefits of the senior debt
indenture except for registration of transfer and exchange of senior debt
securities and replacement of lost, stolen or mutilated senior debt securities.
(Senior debt indenture, Section 15.02.)
The subordinated debt indenture does not contain provisions for the
defeasance and discharge of Union Planters' obligations on the subordinated debt
securities and the subordinated debt indenture.
THE TRUSTEE
The First National Bank of Chicago will be the trustee under the
indentures. It is also trustee under (i) an indenture with Union Planters
pursuant to which Union Planters' 8.20% Junior Subordinated Deferrable Interest
Debentures due 2026 were issued and (ii) a subordinated indenture with Union
Planters pursuant to which Union Planters' 6.25% Subordinated Notes due 2003 and
6-3/4% Subordinated Notes due 2005 were issued. The trustee and its affiliates
may have other relations with Union Planters in the ordinary course of business.
The occurrence of any default under any of the subordinated debt
indenture, the senior debt indenture or any of the other indentures described
above could create a conflicting interest for the trustee under the Trust
Indenture Act. If such default has not been cured or waived within 90 days after
the trustee has or acquired a conflicting interest, the trustee may be required
by the Trust Indenture Act to eliminate such conflicting interest or resign as
trustee with respect to the securities under one or more of the indentures. In
the event of the trustee's resignation as trustee with respect to the senior
debt securities or the subordinated debt securities, Union Planters shall
promptly appoint a successor trustee with respect to the affected securities.
The Trust Indenture Act also imposes certain limitations on the right
of the trustee, as a creditor of Union Planters, to obtain payment of claims in
certain cases, or to realize on certain property received in respect to any such
claim or otherwise. The trustee will be permitted to engage in other
transactions with Union Planters, provided
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<PAGE> 16
that if it acquires a conflicting interest within the meaning of Section 310 of
the Trust Indenture Act, it must generally either eliminate such conflict or
resign.
PLAN OF DISTRIBUTION
Union Planters may sell the offered securities (1) through agents; (2)
to or through underwriters or dealers; (3) directly to one or more purchasers;
or (4) through a combination of any of these methods of sale.
The prospectus supplement relating to an offering of offered securities
will set forth the terms of such offering, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price of the offered securities and the proceeds to
Union Planters from such sale;
- any underwriting discounts and commissions or agency fees and other
items constituting underwriters' or agents' compensation;
- the initial public offering price;
- any discounts or concessions to be allowed or reallowed or paid to
dealers; and
- the securities exchanges, if any, on which such offered securities
may be listed.
Any initial public offering prices, discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
BY AGENTS
Offered securities may be sold through agents designated by Union
Planters. Any agent involved in the offer or sale of the offered securities in
respect of which this prospectus is delivered will be named, and any commissions
payable by Union Planters to such agent will be set forth, in the prospectus
supplement relating to that offering. Unless otherwise indicated in such
prospectus supplement, the agents will agree to use their reasonable best
efforts to solicit purchases for the period of their appointment.
BY UNDERWRITERS
If underwriters are used in the offering, the offered securities will
be acquired by the underwriters for their own account. The underwriters may
resell the securities from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The securities may be either offered to the
public through underwriting syndicates represented by one or more managing
underwriters or by one or more underwriters without a syndicate. The obligations
of the underwriters to purchase the securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the securities of
the series offered if any of the securities are purchased. Any initial public
offering price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
In connection with underwritten offerings of the offered securities and
in accordance with applicable law and industry practice, underwriters may
over-allot or effect transactions that stabilize, maintain or otherwise affect
the market price of the offered securities at levels above those that might
otherwise prevail in the open market, including by entering stabilizing bids,
effecting syndicate covering transactions or imposing penalty bids, each of
which is described below.
- A stabilizing bid means the placing of any bid, or the effecting of
any purchase, for the purpose of pegging, fixing or maintaining the
price of a security.
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<PAGE> 17
- A syndicate covering transaction means the placing of any bid on
behalf of the underwriting syndicate or the effecting of any purchase
to reduce a short position created in connection with the offering.
- A penalty bid means an arrangement that permits the managing
underwriter to reclaim a selling concession from a syndicate member
in connection with the offering when offered securities originally
sold by the syndicate member are purchased in syndicate covering
transactions.
These transactions may be effected in the over-the-counter market, or
otherwise. Underwriters are not required to engage in any of these activities,
or to continue such activities if commenced.
DIRECT SALES
Offered securities may also be sold directly by Union Planters. In this
case, no underwriters or agents would be involved.
GENERAL INFORMATION
Union Planters may have agreements with the underwriters, dealers and
agents to indemnify them against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribute with respect to
payments which the underwriters, dealers or agents may be required to make.
Each series of offered securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom offered
securities are sold for public offering and sale may make a market in such
offered securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given that there will be a market for the offered securities.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, Union Planters or its Subsidiaries in the ordinary course
of their businesses.
WHERE YOU CAN FIND MORE INFORMATION
Union Planters files annual, quarterly and current reports, proxy
statements and other information with the SEC. Union Planters has also filed
with the SEC a registration statement on Form S-3, to register the securities
being offered by this prospectus. This prospectus, which forms part of the
registration statement, does not contain all of the information included in the
registration statement. For further information about Union Planters and the
securities offered in this prospectus, you should refer to the registration
statement and its exhibits.
You may read and copy any document filed by Union Planters with the SEC
at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the Public Reference Room. Union Planters files its SEC materials
electronically with the SEC, so you can also review Union Planters' filings by
accessing the web site maintained by the SEC at http://www.sec.gov. This site
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC.
The SEC allows Union Planters to "incorporate by reference" the
information it files with them, which means that it can disclose important
information to you by referring you to other documents filed with the SEC. The
information incorporated by reference is considered to be a part of this
prospectus. Information that Union Planters files later with the SEC will
automatically update and supersede information in this prospectus. In all cases,
you should rely on the later information over different information included in
this prospectus or the prospectus supplement. Union Planters has previously
filed the following documents with the SEC and is incorporating them by
reference into this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 1998;
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<PAGE> 18
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999; and
- Current Reports on Form 8-K, dated January 22, 1999, April 15, 1999
and July 15, 1999.
Union Planters also incorporates by reference, from the date of the
initial filing of the registration statement, all documents filed by it with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this prospectus and until Union Planters sells all of the
securities being offered by this prospectus.
You may request a copy of Union Planters' filings at no cost, by
writing or telephoning Union Planters at the following address:
Attn.: E. James House, Jr.
Secretary and Manager of the Legal Department
Union Planters Corporation
Union Planters Administrative Center
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
(901) 580-6584
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. Union Planters has not
authorized anyone else to provide you with different information. Union Planters
is not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
LEGAL OPINIONS
Unless otherwise specified in the applicable prospectus supplement,
Wyatt, Tarrant & Combs will issue an opinion concerning the legality of the
offered securities for Union Planters. Unless otherwise specified in the
applicable prospectus supplement, any underwriters will be advised about certain
issues relating to any offering by Brown & Wood LLP.
EXPERTS
Union Planters' financial statements incorporated in this prospectus by
reference to Union Planters' Annual Report on Form 10-K for the year ended
December 31, 1998, have been incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the offering all of which will be borne
by the Registrant are as follows (all amounts are estimates except for the SEC
Registration fee):
SEC registration fee.................................................$ 166,800
Printing expenses.................................................... 75,000
Legal fees and expenses.............................................. 280,000
Accounting fees and expenses......................................... 100,000
Trustees and registrar's fees and expenses........................... 18,000
Rating Agency fees................................................... 455,000
Miscellaneous........................................................ 10,200
----------
Total.......................................................$1,105,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Charter of the Registrant provides as follows:
TWELFTH: INDEMNIFICATION OF CERTAIN PERSONS:
To the fullest extent permitted by Tennessee law, the
Corporation may indemnify or purchase and maintain insurance
to indemnify any of its directors, officers, employees or
agents and any persons who may serve at the request of the
Corporation as directors, officers, employees, trustees or
agents of any other corporation, firm, association, national
banking association, state-chartered bank, trust company,
business trust, organization or any other type of entity
whether or not the Corporation shall have any ownership
interest in such entity. Such indemnification(s) may be
provided for in the Bylaws, or by resolution of the Board of
Directors or by appropriate contract with the person involved.
The Bylaws of the Registrant provide as follows:
Article V, INDEMNIFICATION:
The Corporation does hereby indemnify its directors and
officers to the fullest extent permitted by the laws of the
State of Tennessee and by ARTICLE TWELFTH of its Charter. The
Corporation may indemnify any other person to the extent
permitted by the Charter and by applicable law.
Indemnification of corporate directors and officers is governed by
Sections 48-18-501 through 48-18-509 of the Tennessee Business Corporation Act
(the "TBCA"). Under the TBCA, a person may be indemnified by a corporation
against judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees) actually and necessarily incurred by him in
connection with any threatened or pending suit or proceeding or any appeal
thereof (other than an action by or in the right of the corporation), whether
civil or criminal, by reason of the fact that he is or was a director or officer
of the corporation or is or was serving at the request of the corporation as a
director or officer, employee or agent of another corporation of any type or
kind, domestic or foreign, if such director or officer acted in good faith for a
purpose which he reasonably believed to be in the best interest of the
corporation and, in criminal actions or proceedings only, in addition, had no
reasonable cause to believe that his conduct was unlawful. A Tennessee
corporation may indemnify a director or officer thereof in a suit by or in the
right of the corporation against amounts paid in settlement and reasonable
expenses, including attorneys' fees, actually and necessarily incurred as a
result of such suit unless such director or officer did not act in good faith or
with the degree of diligence, care and skill which ordinarily prudent men
exercise under similar circumstances and in like positions.
II-1
<PAGE> 20
A person who has been wholly successful, on the merits or otherwise, in
the defense of any of the foregoing types of suits or proceedings is entitled to
indemnification for the foregoing amounts. A person who has not been wholly
successful in any such suit or proceeding may be indemnified only upon the order
of a court or a finding that the director or officer met the required statutory
standard of conduct by (i) a majority vote of a disinterested quorum of the
Board of Directors, (ii) the Board of Directors based upon the written opinion
of independent legal counsel to such effect or (iii) a vote of the shareholders.
The Registrant has purchased a directors' and officers' liability
insurance contract which provides, within stated limits, reimbursement either to
a director or officer whose actions in his capacity as such resulted in
liability and the Registrant fails to reimburse such director or officer
pursuant to the terms set forth above, or to the Registrant, in the event it has
indemnified the director or officer and made such payments. Major exclusions
from coverage include libel, slander, personal profit based on inside
information, illegal payments, dishonesty, accounting of securities profits in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and acts within the scope of the Pension Reform Act of
1974.
ITEM 16. LIST OF EXHIBITS
<TABLE>
<S> <C>
1.1* Form of Underwriting Agreement.
4.1* Form of Senior Debt Indenture.
4.2** Form of Senior Note
4.3* Form of Subordinated Debt Indenture.
4.4** Form of Subordinated Note
5.1* Opinion of Wyatt, Tarrant & Combs.
12.1* Statement of Computation of Ratios of Earnings to Fixed Charges.
23.1* Consent of Wyatt, Tarrant & Combs (included in Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers LLP.
24.1* Powers of Attorney (included at page II-4).
25.1* Statement of Eligibility of The First National Bank of Chicago, as the
Trustee under the Senior Debt Indenture and as the Trustee under the
Subordinated Debt Indenture.
</TABLE>
- --------------
* Filed herewith.
** To be incorporated by reference from a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a) (3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or
II-2
<PAGE> 21
high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions in Item 15, or otherwise, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering hereof.
The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended
(the "TIA"), in accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the TIA.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Memphis, Tennessee, on the 12 day of August, 1999.
UNION PLANTERS CORPORATION
By: /s/ Benjamin W. Rawlins, Jr.
---------------------------------------
Benjamin W. Rawlins, Jr.
Chairman of the Board and
Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints E. James House, Jr. and M. Kirk Walters and each of them, each with
full power to act without the other, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for him and in
his name, place and stead in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and any registration statement relating to the same offering as this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------------- ------------------------------------ ---------------
<S> <C> <C>
/s/ Benjamin W. Rawlins, Jr. Chairman of the Board, August 12, 1999
- -------------------------------------------------- Chief Executive Officer and Director
Benjamin W. Rawlins, Jr. (Principal Executive Officer)
/s/ Jackson W. Moore President, August 12, 1999
- -------------------------------------------------- Chief Operating Officer and Director
Jackson W. Moore
/s/ John W. Parker Executive Vice President and August 12, 1999
- -------------------------------------------------- Chief Financial Officer
John W. Parker (Principal Financial Officer)
/s/ M. Kirk Walters Senior Vice President, Treasurer and August 12, 1999
- -------------------------------------------------- Chief Accounting Officer
M. Kirk Walters (Principal Accounting Officer)
</TABLE>
II-4
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------------- ------------------------------------ ---------------
<S> <C> <C>
- -------------------------------------------------- Director August , 1999
Albert M. Austin
- -------------------------------------------------- Director August , 1999
George W. Bryan
/s/ James E. Harwood
- -------------------------------------------------- Director August 12, 1999
James E. Harwood
/s/ C.E. Heiligenstein
- -------------------------------------------------- Director August 12, 1999
C.E. Heiligenstein
- -------------------------------------------------- Director August , 1999
Carl G. Hogan
/s/ S. Lee Kling
- -------------------------------------------------- Director August 12, 1999
S. Lee Kling
/s/ Parnell S. Lewis, Jr.
- -------------------------------------------------- Director August 6, 1999
Parnell S. Lewis, Jr.
/s/ C.J. Lowrance, III
- -------------------------------------------------- Director August 10, 1999
C.J. Lowrance, III
/s/ V. Lane Rawlins
- -------------------------------------------------- Director August 9, 1999
V. Lane Rawlins
/s/ Donald F. Schuppe
- -------------------------------------------------- Director August 12, 1999
Donald F. Schuppe
/s/ David M. Thomas
- -------------------------------------------------- Director August 12, 1999
David M. Thomas
- -------------------------------------------------- Director August , 1999
Richard A. Trippeer, Jr.
/s/ Spence L. Wilson
- -------------------------------------------------- Director August 12, 1999
Spence L. Wilson
</TABLE>
<PAGE> 1
Exhibit 1.1
================================================================================
UNION PLANTERS CORPORATION
(a Tennessee corporation)
Senior Debt Securities and
Subordinated Debt Securities
UNDERWRITING AGREEMENT
Dated: -- , 1999
================================================================================
<PAGE> 2
UNION PLANTERS CORPORATION
(a Tennessee corporation)
Senior Debt Securities and
Subordinated Debt Securities
UNDERWRITING AGREEMENT
-- , 1999
Salomon Smith Barney Inc.
388 Greenwich Street, 35th Floor
New York, New York 10013
Ladies and Gentlemen:
Union Planters Corporation, a Tennessee corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its senior debt securities (the "Senior Securities") and/or
subordinated debt securities (the "Subordinated Securities", and together with
the Senior Securities, the "Debt Securities"), in one or more offerings on terms
determined at the time of sale and set forth in a terms agreement in the form of
Exhibit A hereto (the "Terms Agreement").
The Senior Securities are to be issued under an Indenture to be dated
as of -- , 1999 (as it may be amended or supplemented from time to time, the
"Senior Indenture"), between the Company and The First National Bank of Chicago,
as trustee (the "Senior Trustee"). The Subordinated Securities are to be issued
under an Indenture to dated as of -- , 1999 (as it may be amended or
supplemented from time to time, the "Subordinated Indenture"), between the
Company and The First National Bank of Chicago, as trustee (the "Subordinated
Trustee", and together with the Senior Trustee, the "Trustees"). The Senior
Indenture and the Subordinated Indenture are collectively referred to herein as
the "Indentures." The Senior Securities and the Subordinated Securities may have
varying designations, maturities, rates and times of payment of interest, if
any, selling prices, redemption terms, if any, exchange terms, if any, and other
specific terms as set forth in the applicable Terms Agreement relating thereto.
As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Debt Securities
and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Debt Securities, or the representative
or representatives of the Underwriters, if an underwriting syndicate is
purchasing the Debt Securities, as specified in the applicable Terms Agreement.
<PAGE> 3
Whenever the Company determines to make an offering of Debt Securities,
the Company will enter into a Terms Agreement providing for the sale of the
applicable Debt Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Debt Securities shall specify
whether Senior Securities or Subordinated Securities are to be issued, the names
of the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount of Debt Securities which
each such Underwriter severally agrees to purchase, the price at which the Debt
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. The Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
offering of Debt Securities will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Company and each
Underwriter participating in the offering of such Debt Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333- -- ), including a prospectus, relating to the Debt Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration statement
has been declared effective by the Commission. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the applicable Debt Securities,
the terms of the offering thereof and the other matters set forth therein will
be prepared and filed pursuant to Rule 424 under the 1933 Act in connection with
any offering of Debt Securities. Any such prospectus supplement, in the form
first filed after the date of the applicable Terms Agreement pursuant to Rule
424, is herein referred to as the "Prospectus Supplement." Such registration
statement, as amended at the date of the applicable Terms Agreement, including
the exhibits thereto and the documents incorporated by reference therein, is
herein called the "Registration Statement," and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations") (the "Rule 430A Information")
or Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information") and the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein; provided that, if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. A "preliminary
2
<PAGE> 4
prospectus" shall be deemed to refer to any prospectus used before the
Registration Statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Agreement, all references to
the Registration Statement, Prospectus, Term Sheet or preliminary prospectus or
to any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
Section 1. Representations and Warranties. (a) The Company represents
and warrants to each of the Underwriters as of the date hereof, as of the date
of each Terms Agreement and as of the Closing Time referred to in Section 2(b)
that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement, including any
Rule 462(b) Registration Statement, has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
As of the effective date of the Registration Statement and any
amendment thereto and as of the applicable filing date as to any
Prospectus Supplement and any amendment thereto, (A) the Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations, the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"); (B) neither
the Registration Statement nor any amendment or supplement thereto
contained or will contain an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(C) neither the Prospectus nor any amendment or supplement thereto
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that this representation
and warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for
use in the Registration Statement or the Prospectus. At the Closing
Time, the applicable Indenture, if any, will comply in all material
respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with any offering
hereunder was substantively
3
<PAGE> 5
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) The documents incorporated by reference or deemed to be
incorporated in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed with the
Commission, complied in all material respects with the requirements of
the 1934 Act, and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment thereto,
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company; and upon execution and delivery of each Terms
Agreement by the Company, such Terms Agreement shall have been duly
authorized, executed and delivered by the Company.
(v) The financial statements incorporated by reference in the
Registration Statement present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their operations and
cash flows for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis; and the supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement.
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition (financial or otherwise), or in the earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries, considered as one
enterprise, and (C) except for regular quarterly dividends on the
Company's Common Stock, par value $5.00 per share, and regular
quarterly dividends on the Company's 8% Cumulative Convertible
Preferred Stock (liquidation value of $25 per share), there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its Capital Stock.
4
<PAGE> 6
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Tennessee with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement; the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
(the "Bank Holding Company Act"); and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(viii) Each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X) (a "Significant
Subsidiary") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have a
Material Adverse Effect; except as otherwise stated in the Registration
Statement, all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable (subject to the provisions of Section 55
of Title 12 of the United States Code in the case of Significant
Subsidiaries which are national banking associations) and, except for
director's qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(ix) The Debt Securities conform in all material respects to
the summary descriptions thereof contained or incorporated by reference
in the Prospectus and such summary descriptions conform to the rights
set forth in the instruments defining the same.
(x) The Debt Securities shall, on the date of the Terms
Agreement relating to such Debt Securities, be duly authorized for
issuance and sale pursuant to this Agreement and, when such Debt
Securities are duly executed, authenticated and delivered pursuant to
the provisions of this Agreement and the applicable Indenture against
payment of the consideration therefor in accordance with this Agreement
and the applicable Terms Agreement, such Debt Securities will be valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforceability thereof may be
limited by bankruptcy, reorganization, moratorium, fraudulent
conveyance, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be entitled to the benefits of
the applicable Indenture; and the Indentures conform in all material
respects to all statements relating thereto contained in the
Prospectus.
5
<PAGE> 7
(xi) The applicable Indenture has been duly authorized by the
Company, will be substantially in the form filed as an exhibit to the
Registration Statement and, when duly executed and delivered by the
Company and the Trustee, will constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
reorganization, moratorium, fraudulent conveyance, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the summary
descriptions of the applicable Indenture set forth in the Prospectus
conforms in all material respects to the provisions contained in the
applicable Indenture.
(xii) Neither the Company nor any Significant Subsidiary is in
violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company
or of any of its Significant Subsidiaries may be subject; and the
execution, delivery and performance of this Agreement, the applicable
Terms Agreement and the Indentures by the Company, the issuance and
delivery of the Debt Securities, the consummation by the Company of the
transactions contemplated in this Agreement, the applicable Terms
Agreement and in the Registration Statement, and compliance by the
Company with the terms of this Agreement, the applicable Terms
Agreement and the Indentures do not and will not conflict with or
constitute a breach of or default under, or result in the creation or
imposition of any material lien, charge or encumbrance upon any
material property or assets of the Company or any of its Significant
Subsidiaries pursuant to any material contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any applicable law,
administrative regulation or administrative or court decree.
(xiii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Debt Securities hereunder or
the consummation of the transactions contemplated by this Agreement or
for the due execution, delivery or performance of the Indentures by the
Company, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations (which
requirements have been met) or state securities laws and except for the
qualification of the Indentures under the 1939 Act (which qualification
has occurred).
(xiv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting
the Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might result in a Material Adverse Effect, or which
might materially
6
<PAGE> 8
and adversely affect the properties or assets of the Company and its
subsidiaries considered as one enterprise, or, which might materially
or adversely affect the consummation of this Agreement or any Terms
Agreement; all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business of the Company or any subsidiary, are
considered in the aggregate, not material; and there are no contracts
or documents of the Company or any Significant Subsidiary which are
required to be filed or incorporated by reference as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed or incorporated by reference.
(xv) The Company and its Significant Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies material to the
conduct of the business now operated by them, and neither the Company
nor any of its Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly, or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings or business affairs or which is reasonably likely to
affect the business prospects of the Company and its subsidiaries
considered as one enterprise.
(xvi) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Debt Securities.
(b) Any certificate signed by any duly authorized officer of the
Company or any Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. Purchase and Sale. (a) The several commitments of the
Underwriters to purchase Debt Securities pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) Payment of the purchase price for, and delivery of, any Debt
Securities to be purchased by the Underwriters pursuant to the applicable Terms
Agreement shall be made at the office of Brown & Wood LLP, One World Trade
Center, New York, New York 10048, or at such other place as shall be agreed upon
by you and the Company in the applicable Terms Agreement, at 9:00 A.M., New York
City time, on the third (fourth, if the pricing occurs after 4:30 P.M., New York
City time, on any given day) business day (unless postponed in accordance with
the provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by you and the Company
(each such time and date being referred to as a "Closing Time"). Unless
otherwise specified in the applicable Terms Agreement, payment shall be made by
wire transfer in immediately available funds to the account so specified to the
Underwriters against delivery to you for the respective accounts of the
Underwriters of the Debt Securities to be purchased by them. Such Debt
Securities or
7
<PAGE> 9
certificates for such Debt Securities, as applicable, shall be in such
denominations and registered in such names as you may request in writing at
least one full business day prior to the applicable Closing Time. Such Debt
Securities or certificates, as applicable, will be made available for
examination and packaging by you not later than 10:00 A.M. on the business day
prior to Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) (i) If reasonably requested by you in connection with the offering
of the Debt Securities, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Debt Securities as you and
the Company deem appropriate and (ii) promptly following the execution of each
Terms Agreement, the Company will prepare a Prospectus Supplement that complies
with the 1933 Act and the 1933 Act Regulations and that sets forth the principal
amount of Debt Securities covered thereby, the names of the Underwriters
participating in the offering and the principal amount of Debt Securities which
each severally has agreed to purchase, the name of each Underwriter, if any,
acting as representative in connection with the offering, the price at which the
Debt Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the selling concession and reallowance, if any,
and such other information concerning the Debt Securities as you and the Company
deem appropriate in connection with the offering of the Debt Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters named therein as many copies of any preliminary prospectus
supplement, the Prospectus and the Prospectus Supplement as you shall reasonably
request. If the Company elects to rely on Rule 434 under the 1933 Act
Regulations, the Company will prepare an abbreviated term sheet that complies
with the requirements of Rule 434 under the 1933 Act Regulations (a "Rule 434
Prospectus") and will provide the Underwriters with copies of the form of Rule
434 Prospectus, in such number as the Underwriters may reasonably request, and
file or transmit for filing with the Commission the form of Prospectus complying
with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b)
of the 1933 Act Regulations by the close of business in New York on the business
day immediately succeeding the date of the applicable Terms Agreement.
(b) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any post-effective amendment), (ii) of the
mailing or the delivery or EDGAR transmission to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act, (iii) of the receipt of any comments from the Commission, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision to the
Prospectus, whether pursuant to the
8
<PAGE> 10
1934 Act, the 1933 Act or otherwise, and will furnish you with copies of any
such amendment or supplement or other document proposed to be filed a reasonable
amount of time prior to such proposed filing and will not file any such
amendment or supplement or other document or use any such prospectus to which
you or counsel shall reasonably object.
(d) The Company will deliver to you as many signed copies of the
registration statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as you
may reasonably request and will also deliver to you a conformed copy of the
Registration Statement and of each amendment thereto for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Debt Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend or supplement
the Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, such amendment or supplement,
whether by documents pursuant to the 1934 Act or otherwise, as may be necessary
to correct such untrue statement or omission to make the Registration Statement
or the Prospectus comply with such requirements.
(f) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Debt Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified and will
not be obligated to execute a general consent to service of process in any
state. In each jurisdiction in which the Debt Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for as long as may
be required for the distribution of the Debt Securities. The Company will
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Debt Securities for sale
in any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning
not later than the first day of the
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Company's fiscal quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(i) If and to the extent specified in the applicable Terms Agreement,
the Company will use its best efforts to effect the listing of the Debt
Securities on the New York Stock Exchange by the Closing Time with respect to
the applicable Terms Agreement.
(j) For such period of time as is specified in the applicable Terms
Agreement, commencing on the date of such Terms Agreement, the Company will not,
without the prior written consent of the Underwriter, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any Debt Securities.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and any
applicable Terms Agreement, including (a) the printing and filing of the
Registration Statement, as originally filed and of each amendment thereto, (b)
the reproduction and delivery of this Agreement and each Terms Agreement, (c)
the preparation, issuance and delivery of the certificates for Debt Securities
to the Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the fees and expenses of counsel for the Underwriters incurred
in connection with the establishment of the Registration Statement and incurred
from time to time in connection with the transactions contemplated thereby, (f)
the qualification of the Debt Securities under securities laws in accordance
with Section 3(g) hereof, including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey and the Legal Investment Survey (copies
of which shall be furnished to the Company promptly after preparation by such
counsel), (g) the printing and delivery to the Underwriters of copies of the
Registration Statement and all amendments thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto, (h)
the reproduction and delivery to the Underwriters of copies of the Indentures,
if applicable, and the Blue Sky Survey and any Legal Investment Survey, (i) the
fees of rating agencies, (j) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
("NASD"), and (k) the fees and expenses, if applicable, incurred in connection
with the listing of the Debt Securities.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(a)(i) or (iv) hereof, the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Debt Securities pursuant to any
Terms Agreement are subject to the accuracy of the representations and
warranties of the Company herein contained, to the accuracy of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of its covenants and
other obligations hereunder, and to the following further conditions:
(a) At the applicable Closing Time:
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(i) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission. Any
request on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the Debt
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b)(7);
(ii) The rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company as of the date of the
applicable Terms Agreement shall not have been lowered since the execution of
such Terms Agreement nor shall any such rating organization have publicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading;
(iii) There shall not have come to the attention of such of you as may
be named in the applicable Terms Agreement any facts that would cause such of
you to believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to a purchaser of the
Debt Securities, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing Time, of
Wyatt, Tarrant & Combs, counsel for the Company, or such other counsel for the
Company satisfactory to such of you as may be named in the applicable Terms
Agreement, in form and substance satisfactory to such of you as may be named in
the applicable Terms Agreement to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Tennessee.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement.
(iii) The Company is duly registered as a bank holding company under
the Bank Holding Company Act; to the best knowledge and information of such
counsel, after due investigation, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, except
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<PAGE> 13
where the failure to so qualify or be in good standing would not have a Material
Adverse Effect.
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, continues to hold a valid
certificate to do business as such and has full power and authority to conduct
business as such, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and, to the best knowledge and information of such counsel, after due
investigation, is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not have a Material Adverse Effect; and all of the issued and
outstanding capital stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable (subject to the
provisions of Section 55 of Title 12 of the United States Code in the case of
Significant Subsidiaries which are national banking associations) and, to the
best knowledge and information of such counsel, after due investigation, is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(v) The applicable Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, reorganization, moratorium,
fraudulent conveyance, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(vi) The Debt Securities are in the form contemplated by the applicable
Indenture, and have been duly and validly authorized by all necessary corporate
action and, when executed and authenticated as specified in the applicable
Indenture and delivered against payment pursuant to this Agreement, as
supplemented by the applicable Terms Agreement, will be valid and binding
obligations of the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, reorganization, moratorium,
fraudulent conveyance, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except further as enforcement thereof may be limited by requirements that a
claim (or a foreign currency judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and will be entitled to the benefits of the
applicable Indenture.
(vii) The Debt Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus and the applicable
Prospectus Supplement.
(viii) The applicable Indenture is qualified under the 1939 Act.
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<PAGE> 14
(ix) This Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by the Company.
(x) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than financial statements and
supporting schedules included therein or omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-1 ("Form T-1") as to which such counsel need
not express an opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xi) The Registration Statement, including any Rule 462(b) Registration
Statement, is effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); and, to the best knowledge and information
of such counsel, after due investigation, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
(xii) Each document filed pursuant to the 1934 Act (other than the
financial statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion) and incorporated by
reference in the Prospectus complied when so filed as to form in all material
respects with the 1934 Act and the rules and regulations thereunder.
(xiii) No authorization, approval, consent, order or decree of any
court or governmental authority or agency is required in connection with the
sale of the Debt Securities under this Agreement and the applicable Terms
Agreement other than as may be required under state securities laws.
(xiv) To the best knowledge and information of such counsel, after due
investigation, there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Registration Statement,
other than those disclosed therein, and all pending legal or governmental
proceedings to which the Company or any subsidiary of the Company is a party or
to which any of their property or assets is subject which are not described in
the Registration Statement, including ordinary routine litigation incidental to
the business of the Company or any such subsidiary, are not material.
(xv) The information in the Prospectus under the captions "Summary,"
"Union Planters" and "Description of Debt Securities" and, with respect to the
Prospectus Supplement relating to the Debt Securities, any further description
with respect to such Debt Securities and, to the extent that such information
constitutes matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by such counsel and is
correct in all material respects.
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<PAGE> 15
(xvi) To the best knowledge and information of such counsel, after due
investigation, there are no material contracts, indentures, deposit agreements,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, the descriptions thereof or
references thereto are correct, and no material default exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, deposit agreement, mortgage,
loan agreement, note, lease or other instrument so described, referred to, or
filed or incorporated by reference.
(xvii) To the best knowledge and information of such counsel, after due
investigation, the execution and delivery of this Agreement, the applicable
Terms Agreement and the Indenture by the Company and the consummation by the
Company of the transactions contemplated herein and therein, do not and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries pursuant to, any
material contract, indenture, deposit agreement, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any applicable law, or of
any judgment, order or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
Significant Subsidiary or any of its properties.
(2) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, with respect to the matters set forth in (i), (v) through (viii)
inclusive, (x) and (xi) of subsection (b)(1) of this Section.
(3) In giving their opinions required by subsections (b)(1) and (b)(2),
respectively, of this Section, Wyatt, Tarrant & Combs and Brown & Wood LLP shall
each additionally state that nothing has come to their attention that would lead
them to believe that the Registration Statement (except for financial statements
and schedules and other financial data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which such counsel need
make no statement) at the time it became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing, 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 or
that the Prospectus, as amended or supplemented at the date of the applicable
Terms Agreement and at Closing Time, contains an untrue statement of material
fact or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise,
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<PAGE> 16
or in the earnings or business affairs or which is reasonably likely to affect
the business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and you
shall have received a certificate of the Chairman or the President or the Deputy
Chairman or an Executive or Senior Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of such
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company contained in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of such Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be complied with
or satisfied at or prior to such Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(d) At the time of the execution of this Agreement and at the
applicable Closing Time, PricewaterhouseCoopers LLP shall have furnished you a
letter dated such date, in form and substance satisfactory to you, to the effect
that (i) they are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder adopted by the Commission;
(ii) in their opinion the consolidated financial statements of the Company and
its subsidiaries audited by them and included or incorporated by reference in
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act and the 1934
Act Regulations; (iii) based upon limited agreed-upon procedures (but not an
audit in accordance with generally accepted auditing standards) set forth in
detail in such letter, nothing has come to their attention as a result of such
procedures that caused them to believe that (A) the unaudited consolidated
interim financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations, (B) any material
modifications should be made to the unaudited consolidated interim financial
statements included or incorporated by reference in the Registration Statement,
for them to be in conformity with generally accepted accounting principles, (C)
(1) at the date of the latest available interim consolidated financial data and
at a specified date not more than three business days prior to the date of
delivery of such letter, there was any change (other than issuance under the
Company's stock and employee benefit plans) in the capital stock (common and
preferred stock), increase in long-term debt (including Federal Home Loan Bank
Advances and medium-term bank notes) or any decreases in total earning assets,
total assets or shareholders' equity (exclusive of the impact of the unrealized
gain or loss on available-for-sale securities, net of applicable income taxes)
of the Company and its subsidiaries consolidated, in each case as compared with
the amounts shown in the latest unaudited consolidated balance sheet included or
incorporated by reference in the Registration Statement or (2) for the period
from the date of the latest available income statement included or incorporated
by reference in the Registration Statement to the date of the latest available
interim consolidated income statement, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated net
interest income, net interest income after provision for losses on loans,
noninterest income or in the total or diluted per-share amounts of consolidated
net earnings, except in all instances for changes, increases or decreases which
the Registration Statement discloses have occurred or may occur or they shall
state any specific changes, increases or decreases; and (iv) in addition to the
examination referred to in their
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<PAGE> 17
opinions and the limited procedures referred to in clause (iii) above, they have
read certain amounts, percentages and financial information which are included
or incorporated by reference in the Registration Statement and which are
specified by you and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records, subject to controls over financial reporting, or to schedules prepared
by the Company therefrom, of the Company and its subsidiaries identified in such
letter.
(e) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Debt Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Debt Securities as
herein contemplated shall be reasonably satisfactory in form and substance to
you and counsel for the Underwriters.
(f) If the NASD is required to pass upon the fairness and
reasonableness of the underwriting terms and arrangements, at the applicable
Closing Time, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
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<PAGE> 18
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above; and
(iv) any breach or alleged breach by the Company of any
agreement or representation made pursuant to this Agreement;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a)(1) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party (i) shall not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
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indemnified party; provided, however, that if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the defendants (including any
impleaded parties) in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been advised by counsel
that there may be one or more legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, or (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after receipt by the indemnifying
party of notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party, then, in each such case, the indemnifying party shall
not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties at the expense of the indemnifying party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 6 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party.
In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(a) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
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Section 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Debt
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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 Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Debt
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Debt
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Debt Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
19
<PAGE> 21
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Debt Securities set forth opposite their
respective names in the applicable Terms Agreement and not joint.
Section 8. Representations Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or any Terms Agreement or contained in certificates of executive
officers of the Company submitted pursuant thereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Debt Securities to the Underwriters.
Section 9. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of 30
days' written notice of such termination to the other party hereto. Such of you
as may be named in any Terms Agreement may also terminate such Terms Agreement,
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there shall have been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) if there shall
have occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
reasonable judgment of such of you as are named in such Terms Agreement,
impracticable to market the Debt Securities or to enforce contracts for the sale
of the Debt Securities, or (iii) if trading in any securities of the Company
shall have been suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange or in the NASDAQ National Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or Tennessee authorities, or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the Company
as of the time any applicable Terms Agreement was entered into shall have been
lowered since that time or if any such rating organization shall have publicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading. In the event of any
such termination, (x) the covenants
20
<PAGE> 22
set forth in Section 3 with respect to any offering of the Debt Securities shall
remain in effect so long as any Underwriter owns any such Debt Securities
purchased from the Company pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(h), the provisions of Section 4, the
indemnity agreement set forth in Section 6, the contribution provisions set
forth in Section 7 and the provisions of Sections 8 and 13 shall remain in
effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in an offering of Debt Securities shall fail
at the applicable Closing Time to purchase the Debt Securities which it or they
are obligated to purchase hereunder and under the applicable Terms Agreement
(the "Defaulted Securities"), then such of you as are named therein shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the nondefaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, during such 24 hours you
shall not have completed such arrangements for the purchase of all the Defaulted
Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Debt Securities to be purchased
pursuant to such Terms Agreement, the nondefaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations bear to the
underwriting obligations of all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of Debt Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as
set forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. Notices. All notices and other communications under this
Agreement and any Terms Agreement shall be in writing and shall be deemed to
have been duly given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to you at 388
Greenwich Street, 35th Floor, New York, New York 10013, or in respect of any
Terms Agreement, to such other person and place as may be specified therein;
notices to the Company shall be directed to it at Union Planters Corporation,
Union Planters Administrative Center, 7130 Goodlett Farms Parkway, Memphis,
Tennessee 38018, Attention of John W. Parker, Executive Vice President (Location
No. A4E).
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company and any Underwriter who becomes a party to a
Terms Agreement, and their respective successors. Nothing expressed or mentioned
in this Agreement or a Terms
21
<PAGE> 23
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or a
Terms Agreement or any provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of the Debt Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
Section 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not effect the construction hereof.
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
22
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
UNION PLANTERS CORPORATION
By
--------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
SALOMON SMITH BARNEY INC.
By:
-------------------------------
Name:
Title:
23
<PAGE> 25
Exhibit A
UNION PLANTERS CORPORATION
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: Union Planters Corporation
Union Planters Administrative Center
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Re: Underwriting Agreement dated , 199_.
Dear Sirs:
We (the "Representative[s]") understand that Union Planters
Corporation, a Tennessee corporation (the "Company"), proposes to issue and sell
$__________ aggregate principal amount of its [senior debt securities] [and]
[subordinated debt securities] (the "Debt Securities"). This Agreement is the
Terms Agreement referred to in the underwriting agreement dated _______________,
199_ (the "Underwriting Agreement"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriters named below
(the "Underwriters") offer to purchase, severally and not jointly, the
respective amounts of Debt Securities set forth below.
<TABLE>
<CAPTION>
Principal Amount of
Name of Debt
Underwriter Securities
<S> <C>
-------------
Total $
------------
</TABLE>
<PAGE> 26
Debt Securities
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,] from
, 19 .
Purchase price: % of the principal amount, plus accrued interest, if any, [or
amortized original issue discount, if any,] from , 19 (payable in
next-day funds).
Listing requirement: [None] [NYSE]
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Other terms and conditions:
2
<PAGE> 27
Each Underwriter severally agrees, subject to the terms and provisions
of the above referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the principal amount of Debt
Securities set forth opposite its name.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement, shall be a binding agreement between
the Underwriters named herein and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
[Representative[s]]
By
--------------------------------------
Acting on behalf of themselves and the
other named Underwriters
Confirmed and accepted as of
the date first above written:
UNION PLANTERS CORPORATION
By:
-------------------------------
Name and Title:
3
<PAGE> 1
EXHIBIT 4.1
UNION PLANTERS CORPORATION
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------
Indenture
Dated as of __________, 1999
------------------
SENIOR DEBT SECURITIES
<PAGE> 2
UNION PLANTERS CORPORATION
RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF __________, 1999
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
<S> <C> <C>
ss. 310 (a)(1) .................................................. 6.09
(a)(2) .................................................. 6.09
(a)(3) .................................................. Not Applicable
(a)(4) .................................................. Not Applicable
(b) .................................................. 6.08
6.10
ss. 311 (a) .................................................. 6.13
(b) .................................................. 6.13
ss. 312 (a) .................................................. 7.01
7.02(a)
(b) .................................................. 7.02(b)
(c) .................................................. 7.02(c)
ss. 313 (a) .................................................. 7.03(a)
(b) .................................................. 7.03(b)
(c) .................................................. 7.03(c)
(d) .................................................. 7.03(d)
ss. 314 (a) .................................................. 7.04
(a)(4) .................................................. 12.02
(b) .................................................. Not Applicable
(c)(1) .................................................. 1.02
(c)(2) .................................................. 1.02
(c)(3) .................................................. Not Applicable
(d) .................................................. Not Applicable
(e) .................................................. 1.02
ss. 315 (a) .................................................. 6.01
(b) .................................................. 6.02
(c) .................................................. 6.01
(d) .................................................. 6.01
(e) .................................................. 5.14
ss. 316 (a) .................................................. 1.01
(a)(1)(A) .................................................. 5.02
5.12
(a)(1)(B) .................................................. 5.13
(a)(2) .................................................. Not Applicable
(b) .................................................. 5.08
ss. 317 (a)(1) .................................................. 5.03
(a)(2) .................................................. 5.04
(b) .................................................. 12.04
ss. 318 (a) .................................................. 1.06
</TABLE>
- ------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
2
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C>
Section 1.01. Definitions................................................................................... 1
Section 1.02. Compliance Certificates and Opinions.......................................................... 10
Section 1.03. Form of Documents Delivered to Trustee........................................................ 11
Section 1.04. Notices, etc., to Trustee and Company......................................................... 11
Section 1.05. Notice to Holders; Waiver..................................................................... 12
Section 1.06. Conflict with Trust Indenture Act............................................................. 12
Section 1.07. Effect of Headings and Table of Contents...................................................... 13
Section 1.08. Successors and Assigns........................................................................ 13
Section 1.09. Separability Clause........................................................................... 13
Section 1.10. Benefits of Indenture......................................................................... 13
Section 1.11. Governing Law................................................................................. 13
Section 1.12. Legal Holidays................................................................................ 13
Section 1.13. No Security Interest Created.................................................................. 14
Section 1.14. Liability Solely Corporate.................................................................... 14
Article Two
DEBT SECURITY FORMS
Section 2.01. Forms Generally............................................................................... 14
Section 2.02. Form of Trustee's Certificate of Authentication............................................... 15
Section 2.03. Securities in Global Form..................................................................... 15
Article Three
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.......................................................... 16
Section 3.02. Denominations................................................................................. 19
Section 3.03. Execution, Authentication, Delivery and Dating................................................ 19
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global Notes for
Definitive Bearer Securities; Global Notes Representing Registered
Securities................................................................................... 22
Section 3.05. Registration, Transfer and Exchange........................................................... 27
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities......................................... 29
Section 3.07. Payment of Interest; Interest Rights Preserved................................................ 30
Section 3.08. Cancellation.................................................................................. 32
Section 3.09. Computation of Interest....................................................................... 33
Section 3.10. Currency of Payments in Respect of Debt Securities............................................ 33
Section 3.11. Judgments..................................................................................... 36
Section 3.12. Exchange Upon Default......................................................................... 37
Section 3.13. CUSIP Numbers................................................................................. 37
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
Article Four
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture....................................................... 37
Section 4.02. Application of Trust Money.................................................................... 39
Article Five
REMEDIES
Section 5.01. Events of Default............................................................................. 39
Section 5.02. Acceleration of Maturity; Rescission and Annulment............................................ 41
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................... 42
Section 5.04. Trustee May File Proofs of Claim.............................................................. 43
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities.............................. 44
Section 5.06. Application of Money Collected................................................................ 44
Section 5.07. Limitation on Suits........................................................................... 44
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest..................................................................................... 45
Section 5.09. Restoration of Rights and Remedies............................................................ 45
Section 5.10. Rights and Remedies Cumulative................................................................ 45
Section 5.11. Delay or Omission Not Waiver.................................................................. 46
Section 5.12. Control by Holders............................................................................ 46
Section 5.13. Waiver of Past Defaults....................................................................... 46
Section 5.14. Undertaking for Costs......................................................................... 47
Section 5.15. Waiver of Stay or Extension Laws.............................................................. 47
Article Six
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities........................................................... 47
Section 6.02. Notice of Defaults............................................................................ 48
Section 6.03. Certain Rights of Trustee..................................................................... 49
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities................................... 50
Section 6.05. May Hold Debt Securities...................................................................... 50
Section 6.06. Money Held in Trust........................................................................... 50
Section 6.07. Compensation and Reimbursement................................................................ 51
Section 6.08. Disqualification; Conflicting Interests....................................................... 51
Section 6.09. Corporate Trustee Required; Eligibility....................................................... 57
Section 6.10. Resignation and Removal; Appointment of Successor............................................. 57
Section 6.11. Acceptance of Appointment by Successor........................................................ 59
Section 6.12. Merger, Conversion, Consolidation or Succession to Business................................... 60
Section 6.13. Preferential Collection of Claims Against Company............................................. 60
Section 6.14. Appointment of Authenticating Agent........................................................... 64
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
Article Seven
HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders..................................... 65
Section 7.02. Preservation of Information; Communication to Holders......................................... 66
Section 7.03. Reports by Trustee............................................................................ 67
Section 7.04. Reports by Company............................................................................ 69
Article Eight
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders............................................................................... 69
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holder............................... 70
Section 8.03. Persons Deemed Owners......................................................................... 71
Section 8.04. Revocation of Consents; Future Holders Bound.................................................. 71
Article Nine
HOLDERS'MEETINGS
Section 9.01. Purposes of Meetings.......................................................................... 71
Section 9.02. Call of Meetings by Trustee................................................................... 72
Section 9.03. Call of Meetings by Company or Holders........................................................ 72
Section 9.04. Qualifications for Voting..................................................................... 72
Section 9.05. Regulations................................................................................... 72
Section 9.06. Voting........................................................................................ 73
Section 9.07. No Delay of Rights by Meeting................................................................. 74
Article Ten
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, Etc., Only on Certain Terms......................................... 74
Section 10.02. Successor Substituted........................................................................ 75
Article Eleven
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders........................................... 75
Section 11.02. Supplemental Indentures With Consent of Holders.............................................. 76
Section 11.03. Execution of Supplemental Indentures......................................................... 77
Section 11.04. Effect of Supplemental Indentures............................................................ 78
Section 11.05. Conformity with Trust Indenture Act.......................................................... 78
Section 11.06. Reference in Debt Securities to Supplemental Indentures...................................... 78
Section 11.07. Notice of Supplemental Indenture............................................................. 78
Article Twelve
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest................................................... 78
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C>
Section 12.02. Officer's Certificate as to Default.......................................................... 79
Section 12.03. Maintenance of Office or Agency.............................................................. 79
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust...................................... 80
Section 12.05. Corporate Existence.......................................................................... 81
Section 12.06. Limitation Upon Creation of Liens on Voting Stock of Significant
Subsidiaries................................................................................ 82
Section 12.07. Limitation upon Disposition of Voting Stock of Principal Banking
Subsidiaries................................................................................ 82
Section 12.08. Waiver of Certain Covenants.................................................................. 83
Article Thirteen
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article..................................................................... 84
Section 13.02. Election to Redeem; Notice to Trustee........................................................ 84
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed....................................... 84
Section 13.04. Notice of Redemption......................................................................... 85
Section 13.05. Deposit of Redemption Price.................................................................. 86
Section 13.06. Debt Securities Payable on Redemption Date................................................... 86
Section 13.07. Debt Securities Redeemed in Part............................................................. 86
Article Fourteen
SINKING FUNDS
Section 14.01. Applicability of Article..................................................................... 87
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities......................... 87
Section 14.03. Redemption of Debt Securities for Sinking Fund............................................... 88
Article Fifteen
DEFEASANCE
Section 15.01. Applicability of Article..................................................................... 89
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations............................. 89
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held in
Trust....................................................................................... 91
Section 15.04. Repayment to Company......................................................................... 91
</TABLE>
iv
<PAGE> 7
INDENTURE dated as of __________, 1999, between UNION PLANTERS
CORPORATION, a Tennessee corporation (hereinafter called the "Company"), having
its principal executive office at 7130 Goodlett Farms Parkway, Memphis,
Tennessee 38018 and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, as trustee (hereinafter called the "Trustee"), having its
Corporate Trust Office at 153 West 51st Street, 5th Floor, New York, New York
10019.
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 unsecured
debentures, notes, bonds or other evidences of indebtedness (herein generally
called the "Debt Securities"), to be issued in one or more series, as provided
in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, 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 1.01. 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 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.
1
<PAGE> 8
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 8.01.
"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.
"Affiliated Corporation" means any corporation which is controlled by
the Company but which is not a Subsidiary of the Company pursuant to the
definition of the term "Subsidiary".
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper or financial journal 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.
"Bearer Security" means any Debt Security (with or without Coupons),
in the form established pursuant to Section 2.01, which is payable to bearer
(including any Global Note payable to bearer) 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 hereunder or any
director or directors and/or officer or officers of the Company to whom that
board or committee shall have delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies in that Place of
Payment or other location are authorized or obligated by law to close, except
as otherwise specified pursuant to Section 3.01.
"Code" means the Internal Revenue Code of 1986, as amended and as in
effect on the date hereof.
2
<PAGE> 9
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, 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 Depositary" has the meaning specified in Section 3.04(b).
"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 its Chairman, its
President, its Chief Financial Officer or an Executive Vice President, and by
its Treasurer, its Chief Accounting Officer, its Controller, an Assistant
Treasurer, its Secretary or an Assistant Secretary of the Company and delivered
to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and
for the settlement of transactions by public institutions of or within the
international banking community, or (ii) any Currency Unit for the purposes for
which it was established.
"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 153 West 51st Street, 5th Floor, New York, New York 10019.
"Corporation" and "corporation" includes corporations, associations,
companies (including joint stock companies and limited liability companies) and
business trusts.
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency or Currency Unit.
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Company pursuant to Section 3.01;
provided that such agent shall accept such appointment in writing and the terms
of such appointment shall be acceptable to the Company and shall, in the
opinion of the Company and the Trustee at the time of such appointment, require
such agent to make the determinations required by this Indenture by a
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method consistent with the method provided in this Indenture for the making of
such decision or determination.
"Currency Unit" means a composite currency or currency unit the value
of which is determined by reference to the value of the currencies of any group
of countries.
"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 3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time of payment is legal tender for
the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.10(g).
"Election Date" has the meaning specified in Section 3.10(i).
"Euroclear Operator" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Date" has the meaning specified in Section 3.04(b).
"Exchange Rate Officer's Certificate" means a telex 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 determined in
accordance with Section 3.02 in the relevant Currency or Currency Unit),
payable on the basis of such Market Exchange Rate sent (in the case of a telex)
or signed (in the case of a certificate) by the Treasurer or any Assistant
Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate.
"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 3.01.
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"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.
"Indebtedness" means (1) any obligation of a Person for (a) the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments or for the payment of the deferred purchase
price of property or assets (other than Trade Payables), or (b) for the payment
of money relating to a lease that is required to be classified as a capitalized
lease obligation in accordance with generally accepted accounting principles;
(2) any liability of others described in the preceding clause (1) that the
Person has guaranteed, that is recourse to such Person or that is otherwise its
legal liability; and (3) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (1) and (2) above.
"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 3.01.
"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, if so provided pursuant to
Section 3.01.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"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 at noon New York time, on the Valuation Date by the
method specified pursuant to Section 3.01 for the securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
(New York 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 Company shall use, in its sole discretion and
without
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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 Company shall deem
appropriate, in its sole discretion and without liability on its part. Unless
otherwise specified by the Currency Determination Agent, 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 as determined by the Currency
Determination Agent, in its sole discretion and without liability on its part,
upon which a nonresident issuer 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.
"Officers' Certificate" means a certificate signed by the Chairman,
the President, the Chief Financial Officer or an Executive Vice President, and
by the Treasurer, the Chief Accounting Officer, the Controller or the 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) 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 canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Debt Securities with respect to which 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 pertaining; 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; and
(iii) Debt Securities which have been paid pursuant to
Section 3.06 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 reasonably
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;
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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 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 5.02 and the principal amount of a Debt Security
denominated in a Foreign Currency that shall be deemed to be Outstanding for
such purpose shall be the amount calculated pursuant to Section 3.10(k).
"Overdue Rate", when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 3.01.
"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 3.04(b).
"Person" means any individual, Corporation, partnership, joint
venture, association, trust, estate, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as
specified pursuant to Section 3.01.
"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 3.06 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.
"Principal Banking Subsidiary" means any Subsidiary, including its
Subsidiaries, which (1) is principally engaged in the banking business, and (2)
meets any of the following conditions: (i) the Company's and its other
Subsidiaries' investments in and advances to the Subsidiary exceed 30% of the
total assets of the Company and its Subsidiaries consolidated as of the end of
the most recently completed fiscal year; (ii) the Company's and its other
Subsidiaries'
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proportionate share of the total assets (after intercompany eliminations) of
the Subsidiary exceeds 30% of the total assets of the Company and its
Subsidiaries consolidated as of the end of the most recently completed fiscal
year; or (iii) the Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary
exceeds 30% of such income of the Company and its Subsidiaries consolidated for
the most recently completed fiscal year.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture.
"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 5.02 or any other redemption specified pursuant to Section
3.01, 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 2.01 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 3.01 for such Interest Payment Date.
"Responsible Officer" means when used with respect to the Trustee any
officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
"Significant Subsidiary" means a Subsidiary, including its
Subsidiaries, which meets any of the following conditions: (i) the Company's
and its other Subsidiaries' investments in and advances to the Subsidiary
exceed 10% of the total assets of the Company and its Subsidiaries consolidated
as of the end of the most recently completed fiscal year; (ii) the Company's
and its other Subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of the Subsidiary exceeds 10% of the total assets of
the Company and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year; or (iii) the Company's and its other
Subsidiaries' equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change in accounting
principles of the Subsidiary exceeds 10%
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of such income of the Company and its Subsidiaries consolidated for the most
recently completed fiscal year.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.10(i).
"State" means any of the various States of the United States of
America.
"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 any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation, irrespective of whether or not,
at the time, stock of any other class or classes of such Corporation shall have
or might have voting power by reason of the happening of any contingency, is at
the time, directly or indirectly, owned or controlled by the Company or by one
or more Subsidiaries thereof, or by the Company and one or more Subsidiaries
thereof.
"temporary Global Note" shall have the meaning given such term in
Section 3.04(b).
"Trade Payables" means accounts payable or any other indebtedness or
monetary obligations to trade creditors created or assumed in the ordinary
course of business in connection with the obtaining of materials or services.
"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 amended
and as in force at the date as of which this instrument was executed, except as
provided in Section 11.05.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which include the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"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 3.01
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
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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
15.02.
"U.S. Person" means a citizen or resident of the United States, a
Corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States Federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be, whether
or not designated by a number or word or words added before or after the title
"Vice President."
"Voting Stock" means capital stock the holders of which have general
voting power under ordinary circumstances to elect at least a majority of the
board of directors of a corporation, provided that, for the purposes of such
definition, capital stock which carries only the right to vote conditioned on
the happening of an event shall not be considered voting stock whether or not
such event shall have happened.
"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 of the Company.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents 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 Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such Officers'
Certificate or Opinion of Counsel 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 Officers' Certificate or Opinion of Counsel are based;
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(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. 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 Administration.
(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 Indenture, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the Company.
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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 1.05. Notice to Holders; Waiver.
When 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 any stock exchange located outside the United States
and such stock exchange shall so require, in a daily newspaper or financial
journal or in such city or cities specified pursuant to Section 3.01 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 3.01, shall be sufficiently given if given in the manner
specified pursuant to Section 3.01.
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 1.06. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such duties imposed by the Trust Indenture Act shall
control.
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Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. 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 1.09. 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.
Section 1.12. Legal Holidays.
Unless otherwise specified pursuant to Section 3.01 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.
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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 or
mortgage or other pledge of collateral under the Uniform Commercial Code or
similar legislation or real property laws, 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 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 Debt Securities; provided,
however, that nothing herein or in the Debt Securities or Coupons contained
shall be taken to prevent recourse to and the enforcement of the liability, if
any, of any stockholder or subscriber to capital stock upon or in respect of
the shares of capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. 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 of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
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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 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
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 2.02. 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 CERTIFICATION OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within-mentioned Indenture.
<TABLE>
<S> <C>
Dated: The First National Bank of Chicago,
as Trustee
By
---------------------------------
Authorized Signatory
</TABLE>
Section 2.03. Securities in Global Form.
If any Debt Security of a series is issuable in global form, the
Global Note so issued may provide that it shall represent the aggregate amount
of Outstanding Debt Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note, after its
initial issuance, shall be in writing but need not comply with Section 1.02.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
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ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. 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 from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and
(subject to Section 3.03) set forth in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Debt
Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of, other Debt Securities of such
series pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the Maturity thereof or the method by which such portion shall
be determined;
(4) 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);
(5) 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); and 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;
(6) the place or places where the principal of (and premium, if
any) and interest on Debt Securities of the series shall be payable; 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 3.07; the extent, if any, to which the provisions of the last sentence
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<PAGE> 23
of Section 12.01 shall apply to the Debt Securities of the series; and the
manner in which any principal of, or premium, if any, on, any Global Note will
be paid, if other than as set forth elsewhere herein;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any mandatory redemption,
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;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series, in whole or in part, at its option and 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;
(9) 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 3.04);
(10) 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
5.02;
(11) provisions, if any, for the defeasance of the Debt Securities
of such series or certain of the Company's obligations with respect to the Debt
Securities;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer Securities
are issued, whether Coupons will be attached thereto, whether Bearer Securities
of the series may be exchanged for Registered Securities of the series, as
provided in Section 3.05(b) or otherwise and the circumstances under which and
the place or places at which any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such provisions;
and, if Bearer Securities of the series are to be issued, whether a procedure
other than that set forth in Section 3.04(b) shall apply and, if so, such other
procedure, and if the procedure set forth in Section 3.04(b) shall apply, the
forms of certifications to be delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies or
Currency Unit 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 its proxy
to one vote for purposes of Section 9.06;
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<PAGE> 24
(15) 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 to or in lieu of the
provisions of Section 3.10, the period or periods within which and the terms
and conditions upon which, such election may be made and the time and the
manner of determining the exchange rate or rates between the Currency or
Currencies in which the Debt Securities are denominated or payable without such
election and the Currency or Currencies in which the Debt Securities are to be
paid if such election is made;
(16) the date as of which any Debt Securities of the series shall
be dated, if other than as set forth in Section 3.03;
(17) 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;
(18) if the Debt Securities of the series are 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);
(19) the designation of the original Currency Determination Agent,
if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear interest,
the applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of, any Events
of Default or covenants provided for with respect to Debt Securities of the
series;
(23) if Bearer Securities of the series are to be issued, (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, (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 and (z) the cities in which the Authorized Newspapers designated for the
purposes of giving notices to Holders are published;
(24) 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
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<PAGE> 25
Depositary for such Global Note or Notes; and if the Debt Securities of the
series are issuable only as Registered Securities, the manner in which and the
circumstances under which Global Notes representing Debt Securities of the
series may be exchanged for Registered Securities in definitive form, if other
than, or in addition to, the manner and circumstances specified in Section
3.04(c);
(25) the designation, if any, of the U.S. Depositary; and the
designation of any trustees (other than the Trustee), depositaries,
Authenticating Agents, Paying Agents, Security Registrars, or any other agents
with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a temporary
Debt Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions; and
(27) any other terms of the series (which other terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and Coupons, if any, shall be
substantially identical to all other debt securities of such series 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 3.03) 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 3.02. Denominations.
In the absence of any specification pursuant to Section 3.01 with
respect to the 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 3.03. 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
Executive Vice Presidents, its Chief Accounting Officer 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.
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<PAGE> 26
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 deliver such Debt Securities and
Coupons, subject, in the case of Bearer Securities, to Section 3.04(b);
provided, however, that, in connection with its sale during the "restricted
period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States
Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have
furnished to the Euroclear Operator or to Cedelbank a certificate substantially
in the form set forth in Exhibit A to this Indenture and if the Euroclear
Operator or Cedelbank has furnished the Trustee a certificate substantially in
the form set forth in Exhibit B. 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 and other matters which are subject to variation, 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 3.04, the notation by the
Common Depositary 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 connection with the original
issuance of such beneficial owner's interest in such permanent Global Note.
Except as permitted by Section 3.06 or 3.07, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons for interest then matured
have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section
6.01) 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) the
certificates and opinions required pursuant to Section 1.02 and (iii) one or
more Opinions of Counsel substantially to the effect 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 constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt
Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons have
been established in conformity with the provisions of this Indenture;
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<PAGE> 27
(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, is a valid and binding obligation
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law);
(4) the execution and delivery of such Debt Securities and
Coupons have been duly authorized by all necessary corporate action of the
Company and such Debt Securities and Coupons have been duly executed by the
Company and, assuming due authentication by the Trustee and delivery by the
Company, are valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other exceptions as counsel
shall reasonably request and as to which the Trustee shall not reasonably
object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the execution and
delivery of the Indenture and the Debt Securities under all applicable Federal,
State of Tennessee and State of New York laws, and any other applicable law, if
any, have been received other than such as may be required by the securities or
blue sky laws of the various states in connection with the offer and sale of
the Debt Securities.
Notwithstanding the provisions of Section 3.01 and of the preceding
two paragraphs, if not all of the Debt Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate required by Section 3.01 or the Opinion of Counsel otherwise
required by clause (iii) of the preceding paragraph prior to or at the time of
issuance of each Debt Security of such series, but such documents shall be
delivered prior to or at the time of delivery of the first Debt Security of
such series.
For purposes of this opinion, such counsel may rely as to factual
matters upon certificates or written statements from officers or other
appropriate representatives of the Company or upon certificates of public
officials and such opinion may contain assumptions, limitations, exceptions and
restrictions which are reasonably satisfactory to the Trustee and its counsel.
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.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or permanent or
other definitive Bearer Security in global
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<PAGE> 28
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 3.01 with respect to the Bearer Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for
cancellation as provided in Section 3.08 together with a written statement
(which need not comply with Section 1.02) stating that such Debt Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities; Global Notes Representing
Registered 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 deliver, 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 delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Registered Securities in lieu of which they are issued. In the case
of any series issuable as Bearer Securities, such temporary Debt Securities may
be in global form, representing such of the Outstanding Debt Securities of such
series as shall be specified therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05
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
deliver in exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations
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<PAGE> 29
and of a like Stated Maturity and like terms and provisions; provided, however,
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 permanent 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 3.03. 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 3.01, 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 (or other agent
specified under Section 3.01) 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 (or such other agent) to the London office
of a depositary or common depositary (the "Common Depositary"), for the benefit
of the Euroclear Operator or Cedelbank, 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
in writing.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (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 in definitive form without
Coupons. On or after the Exchange Date such temporary Global Note shall be
surrendered by the Common Depositary to the Trustee (or such other agent as is
specified for the purpose pursuant to Section 3.01), as the Company's agent for
such purpose at such place specified outside the United States pursuant to
Section 3.01 and following such surrender, the Trustee (or such other agent)
shall (1) endorse the temporary Global Note to reflect the reduction of its
principal amount by an equal aggregate principal amount of such Debt Security,
(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 (including
any permanent Global Note), (4) deliver such definitive Debt Securities to the
Holder thereof or, if such definitive Debt Security is a permanent Global Note,
deliver such permanent Global Note to the Common Depositary to be held outside
the United States for the accounts of the Euroclear Operator or Cedelbank, as
the case may be, for credit to the respective accounts at Euroclear Operator or
Cedelbank, 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 canceled in accordance with Section
3.08 hereof; provided, however, that, unless otherwise specified in such
temporary Global Note, upon such presentation by the Common Depositary, such
temporary Global Note shall be accompanied by a certificate dated the
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Exchange Date or a subsequent date and signed by the Euroclear Operator, as to
the portion of such temporary Global Note held for its account then to be
exchanged for definitive Debt Securities (including any permanent Global Note),
and a certificate dated the Exchange Date or a subsequent date and signed by
Cedelbank, as to the portion of such temporary Global Note held for its account
then to be exchanged for definitive Debt Securities (including any permanent
Global Note), 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 Cedelbank, as the case may be, shall be based on
certificates of the account holders listed in the records of the Euroclear
Operator or Cedelbank, as the case may be, as being entitled to all or any
portion of the applicable temporary Global Note. An account holder of the
Euroclear Operator or Cedelbank, 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 (including any permanent Global Note) shall instruct
the Euroclear Operator or Cedelbank, as the case may be, to request such
exchange on its behalf and shall deliver to the Euroclear Operator or
Cedelbank, as the case may be, a certificate substantially in the form of
Exhibit A hereto and dated no earlier than 10 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 (including
any permanent Global Note) of the same series authenticated and delivered
hereunder, except as to payment of interest, if any.
The delivery to the Company, its agent or the Trustee by the Euroclear
Operator or Cedelbank of any certificate substantially in the form of Exhibit B
hereto may be relied upon by the Company, its agent and the Trustee as
conclusive evidence that a corresponding certificate or certificates has or
have been delivered to the Euroclear Operator or Cedelbank, 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 (or such other agent as may be specified as the Company's agent for
such purpose pursuant to Section 3.01) definitive Debt Securities in an
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 (and such other agent as may be
specified as the Company's agent for such purpose pursuant to Section 3.01) by
the Euroclear Operator or Cedelbank, 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 (or such agent) shall authenticate
and deliver, 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 3.01, 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 or the permanent 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 (and such agent as may be
specified as the Company's agent for such purpose pursuant to
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Section 3.01) of such notice with respect to a Debt Security, 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 (or such other agent as may be specified
as the Company's agent for such purpose pursuant to Section 3.01), 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 Euroclear Operator or Cedelbank, as the case
may be, and the Trustee (or such agent) 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) if a Bearer Security is to be delivered, deliver such
definitive Debt Security outside the United States to the Euroclear Operator or
Cedelbank, 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 Euroclear Operator or Cedelbank. Definitive Debt 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 3.01, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the
Euroclear Operator or Cedelbank on such Interest Payment Date upon delivery by
the Euroclear Operator or Cedelbank to the Trustee (or such agent as may be
specified pursuant to Section 3.01) 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 Euroclear Operator or Cedelbank, 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 (or such agent) 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
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Euroclear Operator or Cedelbank, or by the Company to the Trustee (or such
agent) in accordance with the provisions of this Section 3.04.
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 (and any agent of the Company
appointed pursuant to Section 3.01 and referred to above) with a Company
Request and such form or forms, elimination or change is reasonably acceptable
to the Trustee (and any such agent).
(c) If the Company shall establish pursuant to Section 3.01 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 3.03 and the Company Order with
respect to such series, authenticate and deliver 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, and (iii) shall bear a legend
substantially to the following effect:
"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, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in
definitive form."
Notwithstanding any other provision of this Section or Section 3.05,
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 a clearing agency
registered and 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 deliver,
Registered Securities of such series in
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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 deliver, 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 the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly 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 deliver, 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 3.01 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 deliver, 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 an 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 canceled 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 deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. 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
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for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, 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.
Except as otherwise provided in Section 3.04 and this Section 3.05, at
the option of the Holder, Registered Securities of any series 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 deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive.
(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of
any series which are Bearer Securities. At the option of the Holder thereof, to
the extent permitted by law, any Bearer Security of any series which by its
terms is registrable as to principal and interest may be exchanged for a
Registered Security of such series of like aggregate principal amount and of a
like Stated Maturity and with like terms and conditions upon surrender of such
Bearer Security at the Corporate Trust Office or at any other office or agency
of the Company designated pursuant to Section 3.01 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 12.03, 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
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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 deliver, the Registered
Security or Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of
Debt Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.04(b) or 3.06. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or without
charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of
redemption of Debt Securities of such series selected for redemption under
Section 13.03 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part.
Section 3.06. 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, 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
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Paying Agent harmless, and neither the Company nor the Trustee receives notice
that such Debt Security or Coupon has been acquired by a bona fide purchaser,
then the Company shall execute and upon Company Request the Trustee shall
authenticate and deliver, 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 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, 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.
Section 3.07. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the Regular
Record Date. Unless otherwise specified as contemplated by Section 3.01 with
respect to the Debt Securities of any series, payment of interest on Registered
Securities shall be made at the place or places specified pursuant to Section
3.01 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 provided pursuant to Section 3.01, by wire transfer to an account
designated by the Registered Holder.
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(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall, except
as otherwise provided in Section 12.03, 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 an office or agency of the Company in a Place
of Payment located outside the United States specified pursuant to Section
3.01.
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 an
office or agency of the Company in a Place of Payment located outside the
United States specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, 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 or, if agreeable to the
Trustee (or the Paying Agent specified pursuant to Section 3.01), 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 3.01, 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, if
acceptable to the Trustee or such Paying Agent, 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, at least 25 days prior to the date of the proposed
payment, 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 Section 3.01 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
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deposited is 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 20 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 addresses 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 1.05 not more than 20 days and not less than 10 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 3.08. Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered shall be promptly canceled 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 canceled 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
3.05 or in replacement of mutilated, lost, stolen or destroyed Bearer
Securities of the same series and of
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like Stated Maturity and with like terms and conditions or the related Coupons
pursuant to Section 3.06. 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 Debt
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 the Company
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 canceled by the Trustee. No Debt Securities or Coupons shall
be authenticated in lieu of or in exchange for any Debt Securities or Coupons
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Debt Securities and Coupons held by the Trustee shall
be destroyed by the Trustee in accordance with its customary procedures and a
certificate of destruction 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 3.04 hereof and
substantially in the form of Exhibit B hereto, to be given by the Euroclear
Operator or Cedelbank, have been duly presented to the Trustee by the Euroclear
Operator or Cedelbank, 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 3.09. Computation of Interest.
Except as otherwise specified pursuant to Section 3.01 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 of Payments in Respect of Debt Securities.
(a) Except as otherwise specified pursuant to Section 3.01 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 3.01 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 reasonably satisfactory
to
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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 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, 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 is 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 3.01 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 or any other Currency Unit in which any of the Debt 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 Debt
Securities denominated or payable in such Foreign Currency or such other
Currency Unit occurring after the last date on which such Foreign Currency 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 Debt 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, 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
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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, 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, 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.
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 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, 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
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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 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 1.05 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to any
Currency Unit in which Debt Securities are denominated or payable, the Company,
after learning thereof, will immediately give written notice thereof to the
Trustee (and the Trustee will promptly thereafter give written notice in the
manner provided in Section 1.05 to the Holders) specifying the Conversion Date
and the Specified Amount of each Component Currency on the Conversion Date. In
the event of any subsequent change in any Component Currency as set forth in
the definition of Specified Amount above, the Company, after learning thereof,
will similarly give written notice to the Trustee. The Trustee shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Currency Determination Agent, if any, and may,
notwithstanding any other provision of this Indenture, conclusively assume that
no Conversion Event or other event of which it is entitled to notice hereunder
has occurred unless it receives written notice thereof as provided herein, 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 Business Day immediately prior
to 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
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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 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 Section 12.01, 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, upon receipt of a Company
Order, 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.
Section 3.13. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Debt Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange or conversion of such Debt
Securities herein expressly provided for or expressly provided in the terms of
the Debt Securities of such series pursuant to Section 3.01, 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
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Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any,
of such series theretofore authenticated and delivered (other than (i)
Debt Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.06, (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 3.05, (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 13.06,
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 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any,
of such series not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice by the
Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause
(B), has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the
Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Section 3.01 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 Company under this
Indenture with respect to such Debt Securities shall not be deemed
terminated or discharged;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with; and
(4) the Company has delivered to the Trustee an Opinion of
Counsel or a ruling by the Internal Revenue Service to the effect that
such deposit and discharge will not cause Holders of the Debt
Securities of the series to recognize income, gain or loss for Federal
income tax purposes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations
of the Trustee to any Authenticating Agent under Section 6.14, the obligations
of the Company under Section 12.01, and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in subclause (B) of
clause 1 of this Section 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 deposit was made, or (y) if a Conversion
Event occurs with respect to the Currency in which 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
deposit made with respect to such Debt Security shall be converted into the
Currency in which such payment is made.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 12.04, all
money deposited with the Trustee pursuant to Section 4.01 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 5.01. 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 any 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
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(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) 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 any covenant or warranty 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 60 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
(5) a default under any bond, debenture, note or other evidence
of indebtedness for money borrowed (including a default with respect to Debt
Securities of any series other than that series) or under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by the Company or
any Significant Subsidiary in excess of $5,000,000 (including this Indenture),
whether such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, without such acceleration having been rescinded or annulled within a
period of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series a written notice specifying such default and
requiring the Company or the Significant Subsidiary, as the case may be, to
cause such acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; provided, however, that if such
default shall be remedied or cured by the Company or the Significant Subsidiary
or waived by the holders of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without any action on the part of the Trustee or any
of the Holders; or
(6) the entry of a decree or order for relief in respect of the
Company or any Significant Subsidiary 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 Significant Subsidiary 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 Significant Subsidiary 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 Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
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(7) the commencement by the Company or any Significant Subsidiary
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 Significant Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series
at that 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 the
Outstanding Debt Securities of such series may declare the principal amount
(or, if any Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Discount Securities as may be specified
in the terms of such Discount Securities) of all the Debt Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon, any such declaration such
principal amount (or specified amount) plus accrued and unpaid interest (and
premium, if any), 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 Section 3.01 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 in
this Article provided, 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 Section 3.01 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,
(C) to the extent that payment of such interest
is lawful, interest upon overdue
installments of interest on each Debt
Security of such
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series or upon overdue payments on any
Coupons of such series at the Overdue Rate,
and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; provided,
however, that all sums payable under this
clause (D) shall be paid in Dollars; and
(2) All Events of Default with respect to Debt Securities
of such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission and annulment shall affect any subsequent default
or impair any right consequent thereon.
Section 5.03. 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 of 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, (i) the amount then due and
payable on such Debt Securities or matured Coupons for the principal (and
premium, if any) and interest, if any, (ii) 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 (iii) 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.
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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 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the applicable
Federal or State bankruptcy, insolvency or similar law, as now or hereafter
constituted, relative to the Company or any other obligor upon the Debt
Securities and Coupons, if any, of a particular series or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of such Debt Securities shall then be due and payable
as therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such
portion of the principal amount as may be due and payable with respect
to such series pursuant to a declaration in accordance with Section
5.02) (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 and take such other actions, including
participating as a member, voting or otherwise, of any committee of
creditors appointed in the matter, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of such Debt
Securities and Coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each
such Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to such Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
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Section 5.05. 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 5.06. 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
6.07.
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
or Coupons of such series, in respect of which or for the benefit of
which such money has been collected ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debt Securities or Coupons for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.07. 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
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(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 of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, 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 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, 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 3.07) 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) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or 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 6.01, 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;
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(4) this provision shall not affect the rights of the Trustee set
forth in Section 6.01(c)(4).
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, by notice to the Trustee and the
Company, any past default or Event of 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 Event of Default or
impair any right consequent thereon.
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Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder of a Debt
Security or Coupon for the enforcement of the payment of the principal of (or
premium, if any) or interest on such Debt Security or the payment of any Coupon
on or after the respective Stated Maturity or Maturities expressed in such Debt
Security or Coupon (or, in the case of redemption, on or after the Redemption
Date).
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 this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall
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be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt Securities
of any series has occurred and is continuing, the Trustee shall, with respect
to the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) Subject to Section 6.04, no provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to
Debt Securities of any series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;
(4) the Trustee shall not be required 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; and
(5) the Trustee shall not be charged with knowledge of any
default or Event of Default or any other act or circumstance upon the
occurrence of which the Trustee may be required to take action unless
a Responsible Officer of the Trustee obtains actual knowledge of such
default, Event of Default, act or circumstance or unless written
notice referencing this Indenture or the Debt Securities is received
by the Trustee at the Corporate Trust Office.
(d) 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 6.02. 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
give notice to all Holders of Debt
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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
5.01(4) 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.
Notice given pursuant to this Section 6.02 with respect to Registered
Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have within
two years preceding such transmission, filed their names and addresses with the
Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.02 with respect to Bearer
Securities shall be transmitted in the manner set forth in Section 1.05.
Section 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, 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
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hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel 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;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. 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. The Trustee assumes no
responsibility for the accuracy of any statements in any registration statement
relating to the Debt Securities.
Section 6.05. 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 6.08
and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
Section 6.06. 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
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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 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and the 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 connection with the
administration of the trusts herein set forth (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability, damage, claims or expense, including taxes (other
than taxes based upon, measured by or determined by 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 and in addition to its rights under Section 5.06, 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 pursuant to Section 15.03 hereof or for the payment of
amounts due on particular Debt Securities and Coupons. The fees and expenses
incurred by the Trustee in connection with any bankruptcy of the Company shall
constitute fees and expenses of administration; provided, however, that this
shall not affect the Trustee's rights as set forth in the preceding sentence or
Section 5.06.
Section 6.08. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series,
then, within 90 days after ascertaining that it has such conflicting interest,
and if the default (as hereinafter defined) to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the
end of such 90-day period, the Trustee shall either eliminate such conflicting
interest or, except as otherwise provided below, resign with respect to the
Debt Securities of such series, and the Company shall take prompt steps to have
a successor appointed, in the manner and with the effect hereinafter specified
in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt
Securities of any series, the Trustee shall,
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within 10 days after the expiration of such 90-day period, transmit to all
Holders of Debt Securities of such series notice of such failure.
Notice given pursuant to this Section 6.08(b) with respect to
Registered Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
(3) to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.08(b) with respect to Bearer
Securities shall be transmitted in the manner set forth in Section 1.05.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Debt Securities of any
series, if there shall exist an Event of Default (as such term is defined
herein, but exclusive of any period of grace or requirement of notice) with
respect to such Debt Securities and
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Debt Securities of any series other than that
series or is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only
collateral consists of Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph of this Indenture with respect to the Debt Securities of any
series other than that series and any other indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture
or indentures (and all series of securities issuable
thereunder) are wholly unsecured and rank equally and such
other indenture or indentures are hereafter qualified under
the Trust Indenture Act, unless the Commission shall have
found and declared by order pursuant to Section 305(b) or
Section 307(c) of the Trust Indenture Act that differences
exist between the provisions of this Indenture with respect
to the Debt Securities of such series and one or more other
series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict
of interest as to make it necessary, in the public interest
or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to the
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Debt Securities of such series and such other series or under
such other indenture or indentures, or
(ii) the Company shall have sustained the
burden of proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Debt Securities of such series
and such other series or such other indenture or indentures
is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Debt
Securities of such series and such other series or under such
other indenture or indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive
officer, or both, of the Company but may not be at the same time an
executive officer of both the Trustee and the Company; (ii) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Debt Securities issued under this Indenture
and securities issued under any other indenture under which the
Trustee is also trustee, or (ii) 10% or more of any class of security
of an underwriter for the Company;
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(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default or
any anniversary of such Event of Default while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of not more
than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after
the dates of any such Event of Default and annually in each succeeding
year that such Event of Default continues, the Trustee shall make a
check of its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of (or premium, if any) or interest on any of
the Debt Securities when and as the same becomes due and payable, and
such failure continues for 30 days thereafter, the Trustee shall make
a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall be considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraph
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the Trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another series; provided that "series
of securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a
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person is or is not necessary or sufficient to constitute direct or indirect
control for the purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an
estate, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
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(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount", when used with regard to securities
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a
sinking fund relating to securities of the issuer of the same
class;
(ii) securities of an issuer held in a
sinking fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class of
securities is not in default as to principal or interest or
otherwise;
(iii) securities pledged by the issuer
thereof as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series
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different classes; and provided, further, that, in the case of
unsecured evidences of indebtedness, differences in the interest rates
or maturity dates thereof shall not be deemed sufficient to constitute
them securities of different classes, whether or not they are issued
under a single indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Debt Security of any series, or in the payment
of any sinking or purchase fund installment, the Trustee shall not be required
to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
Section 6.09. 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 $50,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority and eligible to act as Trustee
hereunder in compliance with Section 310(a)(1) of the Trust Indenture Act. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor
any person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debt Securities of such series.
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(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series, and a successor Trustee appointed, 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 6.08(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 6.09
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 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 vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, subject to
Section 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.
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(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 1.05 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 6.07.
(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 to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee
relates, but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
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(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 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.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such default, then, unless and
until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Debt Securities and of the Coupons, if any, and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a voluntary or involuntary case had been commenced in
respect of the Company under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or
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otherwise, after the beginning of such three-month period, or an
amount equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made
on account of any such claim by any Person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide sale of
any such claim by the Trustee to a third Person, and (iii)
distributions made in cash, securities or other property in respect
of claims filed against the Company in bankruptcy or receivership or
in proceedings or reorganization pursuant to the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after
the beginning of such three-month period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that
at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in subsection
(c) of this Section, would occur within three months, or
(D) to receive payment on any claim referred to in
paragraph (B) or (C) against the release of any property held as
security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable
Federal or State bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders
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and the holders of other indenture securities dividends on claims filed against
the Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or other similar
law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such
dividends and from the funds and property so held in such special account. As
used in this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee and the Holders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claim, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such
three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the Lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances
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surrounding the making thereof is given to the Holders at the time and
in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) The acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Debt Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Company" means any obligor upon the Debt
Securities.
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Section 6.14. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there 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. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Debt Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee for such series or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the
applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or 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 1.05. 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 Trustee for the Debt Securities of such series
agrees to pay to the Authenticating Agent for such series from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall
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have no responsibility or liability for any action taken by it as such in good
faith and without negligence at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
--------------------------------------
As Trustee
Dated: By:
-----------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. 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 3.01 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
15 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.
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The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
Section 7.02. 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 7.01 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
7.03(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.01 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 7.03(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
7.02(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 7.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(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
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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 7.02(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 7.02(b).
Section 7.03. Reports by Trustee.
(a) Within 60 days after May 30 of each year, commencing May 30,
2000, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.03, a
brief report dated as of such date with respect to any of the following events
which may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than 1/2 of 1% of the principal amount of the Outstanding
Debt Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other obligor
on the Debt Securities of such
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series) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2),
(3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02 (a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Debt Securities of such series, on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any
time aggregate 10% or less of the principal amount of the Debt Securities of
such series Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) Reports pursuant to this Section 7.03 with respect to
Registered Securities shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section 7.03, to each Holder of a Debt Security of any series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a).
Reports pursuant to this Section 7.03 with respect to Bearer
Securities shall be published in accordance with Section 1.05.
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(d) 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 of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be required from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and
to the extent provided in Section 7.03, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. 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
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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 8.02. Proof of Ownership; Proof of Execution of Instruments by
Holder.
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 that 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 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his agent or 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 acknowledgments 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 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
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Section 8.03. 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 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. The Company, the Trustee, and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security or of any Coupon as the
absolute owner of such Bearer Security or Coupon for the purposes of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or Coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any Holder, or upon
his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon such
Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, 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 8.02,
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, subject to the provisions of Section 5.08, 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 9.01. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any
of the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to consent
to the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Holders pursuant to any of the
provisions of Article Five;
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(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 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
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 9.02. 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 9.01, 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 1.05. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. 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 10% 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 9.01, by giving notice thereof as provided in
Section 9.02.
Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee for the
series with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. 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
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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 9.03, 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 3.01) 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 9.02 or 9.03 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 9.06. 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 taken and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice
was transmitted as provided in Section 9.02. 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.
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Section 9.07. 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 or of the Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 10.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease all or substantially all of its properties and
assets to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease all or
substantially all of its properties and assets to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another person or convey, transfer or lease all or substantially all
of its properties and assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Company shall be
a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture 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 occurred and be
continuing; and
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this
Indenture, the Company or such successor Person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Debt Securities equally and ratably with (or prior to) all
Indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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Section 10.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 10.01, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, 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 Person shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
Without prior notice to or 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 rights of
the Company and the assumption by such successor of the covenants and other
obligations of the Company herein and in the Debt Securities and Coupons, if
any, 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
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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 Article Four, 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 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
to eliminate any conflict between the terms of this Indenture or the Debt
Securities and the Trust Indenture Act 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 alter the provisions of Section 3.10(e) hereof and
establish any other provisions in respect of Debt Securities issued in a
Foreign Currency; provided that any such change 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 provisions and as to which such supplemental indenture would
apply.
Section 11.02. Supplemental Indentures With Consent of Holders.
With the written 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 or Coupons, if any; 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,
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(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any payment
to be made with respect to any Coupon, or change the Currency or Currencies in
which the principal of (and premium, if any) or interest on such Debt Security
is denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.02, 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 limit the
obligation of the Company to maintain a paying agency outside the United States
for payment on Bearer Securities as provided in Section 12.03; 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 or Events of Default hereunder and their consequences provided for in
this Indenture; or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.08, 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 of each series
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 12.08, or the
deletion of this proviso, in accordance with the requirements of Sections 6.11
and 11.01(7).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debt Securities and Coupons, if any, of any
other series.
Section 11.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter
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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 11.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Debt Securities and Coupons theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 11.05. 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 11.06. 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 11.07. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 11.02, the Company
shall transmit, in the manner and to the extent provided in Section 1.05, 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 12.01. 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 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, 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. If so
provided in the terms of any series of Debt Securities established as provided
in
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Section 3.01, 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 only upon presentation of such Debt Security to the Trustee
for notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
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, a certificate
of the principal executive officer, principal financial officer or principal
accounting officer of the Company stating whether or not to the best knowledge
of the signer thereof the Company is in compliance with all covenants and
conditions under this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which such signer may
have knowledge. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain or cause to be maintained 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 or
redemption, 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, if any, may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for exchange or redemption, where
Debt Securities of that series that are convertible may be surrendered for
conversion, 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 Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series, if so provided pursuant to Section 3.01); 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 Paying 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 exchange and
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redemption 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 locations, and
any change in the locations, of such offices or agencies. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related Coupons may be presented and surrendered for payment at the offices
specified in the applicable Debt Security, and the Company hereby appoints the
Trustee, or in the case of Bearer Securities, such other agent as is specified
pursuant to Section 3.01, 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, if so
provided pursuant to Section 3.01) shall be made at the office of the Trustee
or the Company's Paying Agent in the Borough of Manhattan, The City and State
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or
outside of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. 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 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 or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents 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
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held in trust for the benefit of the Persons entitled thereto, and (unless any
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Debt Securities
of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to any applicable abandoned property law, 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, in
its sole discretion, at the expense of the Company cause to be transmitted in
the manner and to the extent provided by Section 1.05, 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 12.05. Corporate Existence.
Subject to the provisions of Article Ten hereof, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence, rights (charter and statutory) and franchises
of the Company and each Significant Subsidiary; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
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Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company or of the applicable Significant
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 12.06. Limitation Upon Creation of Liens on Voting Stock of
Significant Subsidiaries.
The Company will not, and it will not permit any Subsidiary at any
time directly or indirectly to, incur, issue, assume or guarantee any
Indebtedness for borrowed money secured by a pledge of, lien on or security
interest in any shares of Voting Stock of any Significant Subsidiary without
making effective provision whereby the Outstanding Debt Securities (and, if the
Company so elects any other Indebtedness of the Company ranking on a parity
with the Debt Securities) shall be secured equally and ratably with such
secured Indebtedness; provided, however, that the foregoing covenant shall not
apply to any Indebtedness secured by a pledge of, lien on or security interest
in any shares of Voting Stock of any corporation at the time it becomes a
Significant Subsidiary; and provided further, however, that the foregoing
covenant shall not be applicable to liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $5,000,000 in
amount, liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involve claims of less than $5,000,000, or deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds.
If the Company shall hereafter be required to secure the Securities
equally and ratably with any other Indebtedness of the Company pursuant to this
Section, (i) the Company will promptly deliver to the Trustee an Officers'
Certificate stating that the foregoing covenant has been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel the foregoing
covenant has been complied with and that any instruments executed by the
Company or any Subsidiary in the performance of the foregoing covenant comply
with the requirements of the foregoing covenant and (ii) the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the holders of the Debt Securities so secured.
Section 12.07. Limitation upon Disposition of Voting Stock of
Principal Banking Subsidiaries.
Subject to Article 10, the Company will not sell, assign, transfer or
otherwise dispose of any shares of, securities convertible into or options,
warrants or rights to subscribe for or purchase shares of, Voting Stock (other
than directors' qualifying shares) of any Principal Banking Subsidiary and will
not permit any Principal Banking Subsidiary to issue (except to the Company)
any shares of, securities convertible into or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock of any Principal Banking
Subsidiary, except for sales, assignments, transfers or other dispositions
that:
(1) are for fair market value on the date thereof, as determined by
the Board of Directors of the Company (which determination shall be conclusive)
and, after giving effect to such disposition and to any possible dilution, the
Company will own not less than 80% of the
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shares of Voting Stock of such Principal Banking Subsidiary then issued and
outstanding free and clear of any security interest;
(2) are made in compliance with an order of a court or regulatory
authority of competent jurisdiction, as a condition imposed by any such court
or authority permitting the acquisition by the Company, directly or indirectly,
of any other banking institution or entity the activities of which are legally
permissible for a bank holding company or a subsidiary thereof to engage in, or
as an undertaking made to such authority in connection with such an
acquisition;
(3) are made where such Principal Banking Subsidiary, having obtained
any necessary regulatory approvals, unconditionally guarantees payment when due
of the principal of and premium, if any, and interest on the Debt Securities;
or
(4) are made to the Company or any Wholly Owned Subsidiary if such
Wholly Owned Subsidiary agrees to be bound by this covenant and the Company
agrees to maintain such Wholly Owned Subsidiary as a Wholly Owned Subsidiary.
Notwithstanding the foregoing, any Principal Banking Subsidiary may be
merged into or consolidated with another banking institution organized under
the laws of the United States, any State thereof or the District of Columbia
if, after giving effect to such merger or consolidation, the Company or any
Wholly Owned Subsidiary owns at least 80% of the Voting Stock of such other
banking institution then issued and outstanding free and clear of any security
interest and if, immediately after giving effect thereto and treating any such
resulting institution thereafter as a Principal Banking Subsidiary and as a
Subsidiary for purposes of this Indenture, no Event of Default, and no event
that, after the giving of notice or lapse of time or both, would become an
Event of Default, has occurred and is continuing.
Section 12.08. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 12.05, 12.06 and 12.07 (and,
if so specified pursuant to Section 3.01, any other covenant not set forth
herein and specified pursuant to Section 3.01 to be applicable to the Debt
Securities of any series, except as otherwise provided pursuant to Section
3.01) 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 term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent expressly so
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
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ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. 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 3.01 for Debt Securities of any series)
in accordance with this Article.
Section 13.02. 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 13.03, the Company shall, at least
60 days before 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 13.03. Selection by Trustee of Debt Securities to Be Redeemed.
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company, the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized denomination for Debt
Securities of such series pursuant to Section 3.02 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 3.02 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 when 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.
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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 13.04. 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 1.05. 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;
(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 3.05(b) or otherwise, the last date
on which such exchanges may be made; and
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(9) that the redemption is for a sinking fund, if such is the case.
Section 13.05. Deposit of Redemption Price.
On or prior to 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 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01 or 3.10) sufficient to pay the Redemption Price of such Debt
Securities or such amount or any portions thereof which are to be redeemed on
that date.
Section 13.06. 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 Section 3.01
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. 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 12.03) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.01, 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 3.07.
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.
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 13.07. 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 3.01 (in the case of Registered
Securities) and at an office of the Trustee or such other
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office or agency of the Company outside the United States as is specified
pursuant to Section 3.01 (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 deliver 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 14.01. 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 3.01 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 14.02. 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 14.02. Satisfaction of Mandatory Sinking Fund Payments with
Debt Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such sinking fund payment 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
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operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Section 14.03. 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 3.01 or 3.10) and the portion thereof, if any, which is to be satisfied
by delivering and crediting Debt Securities of such series pursuant to Section
14.02 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
14.02 and without the right to make any optional sinking fund payment with
respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment
date immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) 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 12.04) 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 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 13.03 and the Company shall cause notice of the redemption thereof to
be given in the manner provided in Section 13.04.
88
<PAGE> 95
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 13.06.
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 12.04) in cash a sum,
in the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.01 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 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 or prior to 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 FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
If, pursuant to Section 3.01, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 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 3.01.
Section 15.02. 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 ("legal defeasance option") or (b) if so
specified pursuant to Section 3.01, the Company shall
89
<PAGE> 96
cease to be under any obligation to comply with any obligation of the Company
or restrictive covenant added for the benefit of such series pursuant to
Section 3.01) ("covenant defeasance option"), in either case 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, 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
6.08 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 or a letter or other document from such exchange 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, with respect to the legal defeasance option only,
no Event of Default under Section 5.01(5) or Section 5.01(6) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.01(5) or Section 5.01(6) 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 or a ruling from the Internal Revenue Service to the effect that such
deposit, defeasance or 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.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or
event which with the giving of notice or lapse of time, or both, would become
an Event of Default under Section 5.01(5) or Section 5.01(6) shall have
occurred and be continuing on the 91st day after the date of such
90
<PAGE> 97
deposit, the obligations of the Company referred to under the definition of
covenant defeasance option with respect to such Debt Securities shall be
reinstated. Money and securities held in trust pursuant to a legal defeasance
shall not be subject to Article Sixteen.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series
to receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.04, 3.05, 3.06, 6.07, 12.03 and
15.03 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 timely payment of which its full faith
and credit is pledged, or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
Section 15.03. 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 15.02 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 15.04. 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
15.02.
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<PAGE> 98
The provisions of the last paragraph of Section 12.04 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 15.02.
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<PAGE> 99
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.
--------------
This instrument may be executed in any number of counterparts, each of
which so executed shall constitute an original and all of which together shall
constitute one and the same instrument.
UNION PLANTERS CORPORATION
By:
----------------------------------------------
Name: Benjamin W. Rawlins, Jr.
Title: Chairman and Chief Executive Officer
Attest:
- -------------------------------------
Name: E. James House, Jr.
Title: Secretary
Seal
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
---------------------------------------------
Name:
Title:
Attest:
- --------------------------------------
Name:
Title:
Seal
93
<PAGE> 100
STATE OF TENNESSEE )
) ss.:
COUNTY OF SHELBY )
On the _____ day of _______, 1999, before me personally came
Benjamin W. Rawlins, Jr., to me known, who, being by me duly sworn, did depose
and say that he resides at _____________________________; that he is the
Chairman and Chief Executive Officer of Union Planters Corporation, 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
94
<PAGE> 101
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _______, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he resides at _______________; that he is _______________ of 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
95
<PAGE> 102
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as
set forth below ______________ principal amount of the above captioned Debt
Securities held by you for our account (i) is owned by person(s) that are not
United States person(s) (as defined below), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(as defined in Section 1.165-12(c)(1)(v) of the United States Treasury
regulations) ("financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who 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, on its own behalf or through its agent, that you may advise the
Company or the Company's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned
by United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition if the owner of the
Debt Securities is a United States or foreign financial institution described
in clause (iii) above (whether or not also described in clause (i) or (ii))
this is to further certify that such financial institution has not acquired the
Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
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 beneficial interest in the temporary global Security 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 it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to ________
principal amount of Debt Securities held by you for our account as to which we
are not able to provide a certificate in this form. We understand that exchange
of such portion of the temporary global Note for definitive Bearer Securities
or interests in a permanent global Note cannot be made until we are able to
provide a certificate in this form.
96
<PAGE> 103
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source. "United States" means the United States of America (including
the States and the District of Columbia) and its "possessions" which include
the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
Dated: , 19
------------------------- --
[To be dated no earlier than the
10th day before the Exchange Date]
By:
As, or as agent for, the beneficial owner(s) of the portion of the temporary
Global Note to which this certificate relates
97
<PAGE> 104
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY [EUROCLEAR] AND
[Cedelbank, S.A.] IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies 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 person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who 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 has agreed, on
its own behalf or through its agent, that we may advise the Company or the
Company'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 Treasury regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that 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 certificate is required in connection
with certain tax laws and regulations of the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
98
<PAGE> 105
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source. "United States" means the United States of America (including
the States and the District of Columbia) and its "possessions" which include
the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
Dated: , 19
------------------------- --
[To be dated no earlier than the Exchange Date]
By:
-------------------------------------
[Operator of the Euroclear System]
[Cedelbank]
99
<PAGE> 1
EXHIBIT 4.3
UNION PLANTERS CORPORATION
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------
Indenture
Dated as of __________, 1999
------------------
Subordinated Debt Securities
<PAGE> 2
UNION PLANTERS CORPORATION
RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF _________, 1999
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C> <C>
ss. 310 (a)(1) .................................................. 6.09
(a)(2) .................................................. 6.09
(a)(3) .................................................. Not Applicable
(a)(4) .................................................. Not Applicable
(b) .................................................. 6.08
6.10
ss. 311 (a) .................................................. 6.13
(b) .................................................. 6.13
ss. 312 (a) .................................................. 7.01
7.02(a)
(b) .................................................. 7.02(b)
(c) .................................................. 7.02(c)
ss. 313 (a) .................................................. 7.03(a)
(b) .................................................. 7.03(b)
(c) .................................................. 7.03(c)
(d) .................................................. 7.03(d)
ss. 314 (a) .................................................. 7.04
(a)(4) .................................................. 12.02
(b) .................................................. Not Applicable
(c)(1) .................................................. 1.02
(c)(2) .................................................. 1.02
(c)(3) .................................................. Not Applicable
(d) .................................................. Not Applicable
(e) .................................................. 1.02
ss. 315 (a) .................................................. 6.01
(b) .................................................. 6.02
(c) .................................................. 6.01
(d) .................................................. 6.01
(e) .................................................. 5.14
ss. 316 (a) .................................................. 1.01
(a)(1)(A) .................................................. 5.02
5.12
(a)(1)(B) .................................................. 5.13
(a)(2) .................................................. Not Applicable
(b) .................................................. 5.08
ss. 317 (a)(1) .................................................. 5.03
(a)(2) .................................................. 5.04
(b) .................................................. 12.04
ss. 318 (a) .................................................. 1.06
</TABLE>
- --------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
2
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions......................................................................................1
Section 1.02. Compliance Certificates and Opinions............................................................10
Section 1.03. Form of Documents Delivered to Trustee..........................................................11
Section 1.04. Notices, etc., to Trustee and Company...........................................................11
Section 1.05. Notice to Holders; Waiver.......................................................................12
Section 1.06. Conflict with Trust Indenture Act...............................................................12
Section 1.07. Effect of Headings and Table of Contents........................................................13
Section 1.08. Successors and Assigns..........................................................................13
Section 1.09. Separability Clause.............................................................................13
Section 1.10. Benefits of Indenture...........................................................................13
Section 1.11. Governing Law...................................................................................13
Section 1.12. Legal Holidays..................................................................................13
Section 1.13. No Security Interest Created....................................................................14
Section 1.14. Liability Solely Corporate......................................................................14
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.................................................................................14
Section 2.02. Form of Trustee's Certificate of Authentication.................................................15
Section 2.03. Securities in Global Form.......................................................................15
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series............................................................16
Section 3.02. Denominations...................................................................................19
Section 3.03. Execution, Authentication, Delivery and Dating..................................................20
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global Notes
for Definitive Bearer Securities; Global Notes Representing
Registered Securities...........................................................................22
Section 3.05. Registration, Transfer and Exchange.............................................................28
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities...........................................30
Section 3.07. Payment of Interest; Interest Rights Preserved..................................................31
Section 3.08. Cancellation....................................................................................33
Section 3.09. Computation of Interest.........................................................................34
Section 3.10. Currency of Payments in Respect of Debt Securities..............................................34
Section 3.11. Judgments.......................................................................................37
Section 3.12. Exchange Upon Default...........................................................................37
Section 3.13. CUSIP Numbers...................................................................................38
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.........................................................38
Section 4.02. Application of Trust Money......................................................................40
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default...............................................................................40
Section 5.02. Acceleration of Maturity; Rescission and Annulment..............................................41
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.................................42
Section 5.04. Trustee May File Proofs of Claim................................................................42
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities................................43
Section 5.06. Application of Money Collected..................................................................44
Section 5.07. Limitation on Suits.............................................................................44
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.......................45
Section 5.09. Restoration of Rights and Remedies..............................................................45
Section 5.10. Rights and Remedies Cumulative..................................................................45
Section 5.11. Delay or Omission Not Waiver....................................................................45
Section 5.12. Control by Holders..............................................................................46
Section 5.13. Waiver of Past Defaults.........................................................................46
Section 5.14. Undertaking for Costs...........................................................................46
Section 5.15. Waiver of Stay or Extension Laws................................................................47
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.............................................................47
Section 6.02. Notice of Defaults..............................................................................48
Section 6.03. Certain Rights of Trustee.......................................................................49
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities.....................................50
Section 6.05. May Hold Debt Securities........................................................................50
Section 6.06. Money Held in Trust.............................................................................50
Section 6.07. Compensation and Reimbursement..................................................................50
Section 6.08. Disqualification; Conflicting Interests.........................................................51
Section 6.09. Corporate Trustee Required; Eligibility.........................................................57
Section 6.10. Resignation and Removal; Appointment of Successor...............................................57
Section 6.11. Acceptance of Appointment by Successor..........................................................59
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.....................................60
Section 6.13. Preferential Collection of Claims Against Company...............................................60
Section 6.14. Appointment of Authenticating Agent.............................................................64
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
</TABLE>
ii
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<TABLE>
<S> <C>
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.......................................65
Section 7.02. Preservation of Information; Communication to Holders...........................................66
Section 7.03. Reports by Trustee..............................................................................67
Section 7.04. Reports by Company..............................................................................69
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.................................................................................69
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holder.................................70
Section 8.03. Persons Deemed Owners...........................................................................71
Section 8.04. Revocation of Consents; Future Holders Bound....................................................71
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings............................................................................71
Section 9.02. Call of Meetings by Trustee.....................................................................72
Section 9.03. Call of Meetings by Company or Holders..........................................................72
Section 9.04. Qualifications for Voting.......................................................................72
Section 9.05. Regulations.....................................................................................72
Section 9.06. Voting..........................................................................................73
Section 9.07. No Delay of Rights by Meeting...................................................................74
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, Etc., Only on Certain Terms...........................................74
Section 10.02. Successor Substituted..........................................................................75
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.............................................75
Section 11.02. Supplemental Indentures With Consent of Holders................................................76
Section 11.03. Execution of Supplemental Indentures...........................................................78
Section 11.04. Effect of Supplemental Indentures..............................................................78
Section 11.05. Conformity with Trust Indenture Act............................................................78
Section 11.06. Reference in Debt Securities to Supplemental Indentures........................................78
Section 11.07. Notice of Supplemental Indenture...............................................................78
Section 11.08. Effect on Senior Indebtedness..................................................................78
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.....................................................79
Section 12.02. Officer's Certificate as to Default............................................................79
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<TABLE>
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Section 12.03. Maintenance of Office or Agency................................................................79
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust........................................81
Section 12.05. Corporate Existence............................................................................82
Section 12.06. Waiver of Certain Covenants....................................................................82
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.......................................................................82
Section 13.02. Election to Redeem; Notice to Trustee..........................................................83
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed.........................................83
Section 13.04. Notice of Redemption...........................................................................83
Section 13.05. Deposit of Redemption Price....................................................................84
Section 13.06. Debt Securities Payable on Redemption Date.....................................................85
Section 13.07. Debt Securities Redeemed in Part...............................................................85
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.......................................................................86
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities...........................86
Section 14.03. Redemption of Debt Securities for Sinking Fund.................................................86
ARTICLE FIFTEEN
INTENTIONALLY OMITTED
ARTICLE SIXTEEN
SUBORDINATION
Section 16.01. Agreement to Subordinate.......................................................................88
Section 16.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Debt Securities.................................................................89
Section 16.03. No Payment on Debt Securities in Event of Default on Senior
Indebtedness...................................................................................91
Section 16.04. Payments on Debt Securities Permitted..........................................................91
Section 16.05. Authorization of Holders to Trustee to Effect Subordination....................................92
Section 16.06. Notices to Trustee.............................................................................92
Section 16.07. Trustee as Holder of Senior Indebtedness.......................................................93
Section 16.08. Modifications of Terms of Senior Indebtedness..................................................93
Section 16.09. Reliance on Judicial Order or Certificate of Liquidating Agent.................................93
Section 16.10. Article Sixteen Not to Prevent Events of Default...............................................94
Section 16.11. Payment of Proceeds in Certain Cases...........................................................94
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INDENTURE dated as of __________, 1999, between UNION PLANTERS
CORPORATION, a Tennessee corporation (hereinafter called the "Company"), having
its principal executive office at 7130 Goodlett Farms Parkway, Memphis,
Tennessee 38018 and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, as trustee (hereinafter called the "Trustee"), having its Corporate
Trust Office at 153 West 51st Street, 5th Floor, New York, New York 10019.
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 unsecured and
subordinated debentures, notes, bonds or other evidences of indebtedness (herein
generally called the "Debt Securities"), to be issued in one or more series, as
provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, 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 1.01. 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 United
States of America at the date of such computation; and
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(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 8.01.
"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.
"Affiliated Corporation" means any corporation which is controlled by
the Company but which is not a Subsidiary of the Company pursuant to the
definition of the term "Subsidiary."
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper or financial journal 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.
"Bearer Security" means any Debt Security (with or without Coupons), in
the form established pursuant to Section 2.01, which is payable to bearer
(including any Global Note payable to bearer) 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 hereunder or any
director or directors and/or officer or officers of the Company to whom that
board or committee shall have delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies in that Place of Payment
or other location are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 3.01.
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"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, as
amended, 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 Depositary" has the meaning specified in Section 3.04(b).
"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 its Chairman, its
President, its Chief Financial Officer or an Executive Vice President, and by
its Treasurer, its Chief Accounting Officer, its Controller, an Assistant
Treasurer, its Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such Currency and for the
settlement of transactions by public institutions of or within the international
banking community, or (ii) any Currency Unit for the purposes for which it was
established.
"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 153 West 51st Street, 5th Floor, New York, New York 10019.
"Corporation" or "corporation" includes corporations, associations,
companies (including joint stock companies and limited liability companies) and
business trusts.
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency or Currency Unit.
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Company pursuant to Section 3.01;
provided that such agent shall
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<PAGE> 10
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.
"Currency Unit" means a composite currency or currency unit the value
of which is determined by reference to the value of the currencies of any group
of countries.
"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 3.07.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.10(g).
"Election Date" has the meaning specified in Section 3.10(i).
"Entitled Persons" means any person entitled to payment pursuant to the
terms of Other Financial Obligations.
"Euroclear Operator" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 5.01.
"Excess Proceeds" has the meaning specified in Section 16.11(a).
"Exchange Date" has the meaning specified in Section 3.04(b).
"Exchange Rate Officer's Certificate" means a telex 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 determined in accordance with
Section 3.02 in the relevant Currency or Currency Unit), payable on the basis of
such Market Exchange Rate sent (in the case of a telex) or signed (in the case
of a certificate) by the Treasurer or any Assistant Treasurer of the Company.
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"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate.
"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 3.01.
"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.
"Indebtedness" means (1) any obligation of a Person for (a) the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments or for the payment of the deferred purchase
price of property or assets (other than Trade Payables), or (b) for the payment
of money relating to a lease that is required to be classified as a capitalized
lease obligation in accordance with generally accepted accounting principles;
(2) any liability of others described in the preceding clause (1) that the
Person has guaranteed, that is recourse to such Person or that is otherwise its
legal liability; and (3) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (1) and (2) above.
"Indebtedness Ranking on a Parity with the Debt Securities" means all
Indebtedness of the Company, whether outstanding on the date of the execution of
this Indenture or thereafter created, assumed or incurred, which specifically by
its terms ranks equally with and not prior to the Debt Securities in right of
payment.
"Indebtedness Ranking Junior to the Debt Securities" means all
Indebtedness of the Company, whether outstanding on the date of the execution of
this Indenture or thereafter created, assumed or incurred, which specifically by
its terms ranks junior to and not equally with or prior to the Debt Securities
in right of payment.
"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 3.01.
"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, if so provided pursuant to Section
3.01.
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<PAGE> 12
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"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 for noon, New York time, on the Valuation Date by the method
specified pursuant to Section 3.01 for the securities of the relevant series,
(ii) for any conversion of Dollars into any Foreign Currency, the noon (New York
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
Company, 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 Company shall deem appropriate, in its sole
discretion and without liability on its part. Unless otherwise specified by the
Currency Determination Agent, 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, as determined by the Currency Determination Agent, in its sole
discretion and without liability on its part, upon which a nonresident issuer 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.
"Officers' Certificate" means a certificate signed by the Chairman, the
President, the Chief Financial Officer or an Executive Vice President, and by
the Treasurer, the Chief Accounting Officer, the Controller or the 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) and who shall be
satisfactory to the Trustee, which is delivered to the Trustee.
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Debt Securities pursuant to Section 3.01, all
obligations to make payment pursuant to the terms of financial instruments, such
as (i) securities contracts and currency and foreign exchange rate contracts,
(ii) derivative instruments, such as swap agreements (including interest
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<PAGE> 13
rate and currency and foreign exchange rate swap agreements), cap agreements,
floor agreements, collar agreements, interest rate agreements, foreign exchange
agreements, options, commodity futures contracts, commodity options contracts
and (iii) similar financial instruments; provided that the term Other Financial
Obligations shall not include (A) obligations on account of Senior Indebtedness
and (B) obligations on account of Indebtedness Ranking on a Parity with the Debt
Securities and Indebtedness Ranking Junior to the Debt Securities.
"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 canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Debt Securities with respect to which 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 pertaining; 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; and
(iii) Debt Securities which have been paid pursuant to
Section 3.06 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 reasonably
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; 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 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 5.02 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).
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<PAGE> 14
"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 3.01.
"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 3.04(b).
"Person" means any individual, Corporation, partnership, joint venture,
association, trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of any
series means the place or places where the principal of (and premium, if any)
and interest on the Debt Securities of that series are payable as specified
pursuant to Section 3.01.
"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 3.06 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.
"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 5.02 or any other redemption specified pursuant to Section
3.01, 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 2.01 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 3.01 for such Interest Payment Date.
"Responsible Officer" means when used with respect to the Trustee any
officer within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer or any other officer of
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<PAGE> 15
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
"Senior Indebtedness" means, unless otherwise determined with respect
to any series of Debt Securities pursuant to Section 3.01, all Indebtedness of
the Company, whether outstanding on the date of the execution of this Indenture
or thereafter created, assumed or incurred except for (i) the Debt Securities,
(ii) Indebtedness Ranking on a Parity with the Debt Securities and (iii)
Indebtedness Ranking Junior to the Debt Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.10(i).
"State" means any of the various States of the United States of
America.
"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 any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such Corporation, irrespective of whether or not,
at the time, stock of any other class or classes of such Corporation shall have
or might have voting power by reason of the happening of any contingency, is at
the time, directly or indirectly, owned or controlled by the Company or by one
or more Subsidiaries thereof, or by the Company and one or more Subsidiaries
thereof.
"temporary Global Note" shall have the meaning given such term in
Section 3.04(b).
"Trade Payables" means accounts payable or any other indebtedness or
monetary obligations to trade creditors created or assumed in the ordinary
course of business in connection with the obtaining of materials or services.
"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.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and as in force at the date as of which this instrument was executed, except as
provided in Section 11.05.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which include the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
"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 3.01 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. Person" means a citizen or resident of the United States, a
Corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States Federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be, whether or
not designated by a number or word or words added before or after the title
"Vice President."
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents 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 Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such Officers'
Certificate or Opinion of Counsel 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 Officers' Certificate or Opinion of Counsel are based;
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(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. 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 Administration.
(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 Indenture, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
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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 1.05. Notice to Holders; Waiver.
When 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 any stock exchange located outside the United States
and such stock exchange shall so require, in a daily newspaper or financial
journal in such other city or cities specified pursuant to Section 3.01 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 3.01, shall be sufficiently given if given in the manner
specified pursuant to Section 3.01.
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 1.06. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such duties imposed by the Trust Indenture Act shall
control.
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Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. 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 1.09. 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.
Section 1.12. Legal Holidays.
Unless otherwise specified pursuant to Section 3.01 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 any such payment may be made at such Place of
Payment on the next succeeding Business Day 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.
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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 or mortgage or
other pledge of collateral under the Uniform Commercial Code or similar
legislation or real property laws, 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 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 Debt Securities; provided, however, that
nothing herein or in the Debt Securities or Coupons contained shall be taken to
prevent recourse to and the enforcement of the liability, if any, of any
stockholder or subscriber to capital stock upon or in respect of the shares of
capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. 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 of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
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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 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
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 2.02. 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
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Dated: By:
--------------------------------------
Authorized Signatory
Section 2.03. Securities in Global Form.
If any Debt Security of a series is issuable in global form, the Global
Note so issued may provide that it shall represent the aggregate amount of
Outstanding Debt Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.02.
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Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. 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 from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and
(subject to Section 3.03) set forth in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Debt
Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of, other Debt Securities of such
series pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration
of the Maturity thereof or the method by which such portion shall be determined;
(4) 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);
(5) 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); and 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;
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(6) the place or places where the principal of (and premium, if
any) and interest on Debt Securities of the series shall be payable; 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 3.07; the extent, if any, to which the provisions of the last sentence
of Section 12.01 shall apply to the Debt Securities of the series; and the
manner in which any principal of, or premium, if any, on, any Global Note will
be paid, if other than as set forth elsewhere herein;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any mandatory redemption,
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;
(8) the right, if any, of the Company to redeem the Securities of
such series, in whole or in part, at its option and 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;
(9) 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 3.04);
(10) 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
5.02;
(11) provisions, if any, for the defeasance of the Debt Securities
of such series or certain of the Company's obligations with respect to the Debt
Securities;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer Securities
are issued, whether Coupons will be attached thereto, whether Bearer Securities
of the series may be exchanged for Registered Securities of the series, as
provided in Section 3.05(b) or otherwise and the circumstances under which and
the place or places at which any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such provisions;
and, if Bearer Securities of the series are to be issued, whether a procedure
other than that set forth in Section 3.04(b) shall apply and, if so, such other
procedure, and if the procedure set forth in Section 3.04(b) shall apply, the
forms of certifications to be delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies or
Currency Unit 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
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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 its proxy to one vote for purposes of Section 9.06;
(15) 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 to or in lieu of the
provisions of Section 3.10, the period or periods within which and the terms and
conditions upon which, such election may be made and the time and the manner of
determining the exchange rate or rates between the Currency or Currencies in
which the Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid if such
election is made;
(16) the date as of which any Debt Securities of the series shall
be dated, if other than as set forth in Section 3.03;
(17) 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;
(18) if the Debt Securities of the series are 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);
(19) the designation of the original Currency Determination Agent,
if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the series;
(23) if Bearer Securities of the series are to be issued, (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, (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
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Securities of the series and (z) the cities in which the Authorized Newspapers
designated for the purposes of giving notices to Holders are published;
(24) 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; and if
the Debt Securities of the series are issuable only as Registered Securities,
the manner in which and the circumstances under which Global Notes representing
Debt Securities of the series may be exchanged for Registered Securities in
definitive form, if other than, or in addition to, the manner and circumstances
specified in Section 3.04(c);
(25) the designation, if any, of the U.S. Depositary; and the
designation of any trustees (other than the Trustee), depositaries,
Authenticating Agents, Paying Agents, Security Registrars, or any other agents
with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a temporary
Debt Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(27) if other than as specified in Article Sixteen, the
subordination provisions applicable with respect to the Debt Securities of the
series, including a different definition of the terms "Senior Indebtedness" or
"Other Financial Obligations"; and
(28) any other terms of the series (which other terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and Coupons, if any, shall be
substantially identical to all other debt securities of such series 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 3.03) 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 3.02. Denominations.
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered
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Securities in denominations of $1,000 and any integral multiple thereof and
shall be payable only in Dollars.
Section 3.03. 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
Executive Vice Presidents, its Chief Accounting Officer 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 deliver such Debt Securities and
Coupons, subject, in the case of Bearer Securities, to Section 3.04(b);
provided, however, that, in connection with its sale during the "restricted
period" (as defined in Section 1.1635(c)(2)(i)(D)(7) of the United States
Treasury Regulations), no Bearer Security shall be mailed or otherwise delivered
to any location in the United States; and provided, further, that a Bearer
Security (other than a temporary Global Note in bearer form) may be delivered
outside the United States in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have furnished to the
Euroclear Operator or to Cedelbank a certificate substantially in the form set
forth in Exhibit A to this Indenture and if the Euroclear Operator or Cedelbank
has furnished the Trustee a certificate substantially in the form set forth in
Exhibit B. 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 and other matters which
are subject to variation, 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 3.04, the notation by the Common Depositary 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 connection with the original issuance of such beneficial owner's
interest in such permanent Global Note. Except as permitted by Section 3.06 or
3.07, the Trustee shall not authenticate and deliver any Bearer Security unless
all Coupons for interest then matured have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and
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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) the certificates and opinions required pursuant to
Section 1.02 and (iii) one or more Opinions of Counsel substantially to the
effect 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 constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt
Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons 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, is a valid and binding obligation
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law);
(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all necessary corporate action of the Company and
such Debt Securities and Coupons have been duly executed by the Company and,
assuming due authentication by the Trustee and delivery by the Company, are
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, entitled to the benefit of the Indenture, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and subject to such other exceptions as counsel shall reasonably request
and as to which the Trustee shall not reasonably object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the execution and
delivery of the Indenture and the Debt Securities under all applicable Federal,
State of Tennessee and State of New York laws, and any other applicable law, if
any, have been received other than such as may be required by the securities or
blue sky laws of the various states in connection with the offer and sale of the
Debt Securities.
Notwithstanding the provisions of Section 3.01 and of the preceding two
paragraphs, if not all of the Debt Securities of any series are to be issued at
one time, it shall not be necessary to deliver the Officers' Certificate
required by Section 3.01 or the Opinion of Counsel otherwise required by clause
(iii) of the preceding paragraph prior to or at the time of issuance of each
Debt Security of such series, but such documents shall be delivered prior to or
at the time of delivery of the first Debt Security of such series.
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For purposes of this opinion, such counsel may rely as to factual
matters upon certificates or written statements from officers or other
appropriate representatives of the Company or upon certificates of public
officials and such opinion may contain assumptions, limitations, exceptions and
restrictions which are reasonably satisfactory to the Trustee and its counsel.
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.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or permanent or other 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 3.01 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities; Global Notes Representing
Registered 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 deliver, 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 delivered 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.
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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 3.05 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 deliver 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, 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 permanent
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
3.03. 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 3.01, 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 (or other agent
specified under Section 3.01) 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 (or such other agent) to the London office
of a depositary or common depositary (the "Common Depositary"), for the benefit
of the Euroclear Operator or Cedelbank, 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 in writing.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (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 in definitive form without
Coupons. On or after the Exchange Date such temporary Global Note shall be
surrendered by the Common Depositary to the Trustee (or such other agent as is
specified for the purpose pursuant to Section 3.01), as the Company's agent for
such purpose, at such place specified outside the United States pursuant to
Section 3.01 and following such surrender, the Trustee (or such other agent)
shall (1) endorse the temporary Global Note to reflect the reduction of its
principal amount by an equal aggregate
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principal amount of such Debt Security, (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 (including any permanent Global Note), (4) deliver
such definitive Debt Securities to the Holder thereof or, if such definitive
Debt Security is a permanent Global Note, deliver such permanent Global Note to
the Common Depositary to be held outside the United States for the accounts of
the Euroclear Operator or Cedelbank, as the case may be, for credit to the
respective accounts at Euroclear Operator or Cedelbank, 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 canceled in accordance with Section 3.08 hereof; provided, however,
that, unless otherwise specified in such temporary Global Note, 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 Euroclear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by Cedelbank, as to the portion of such
temporary Global Note held for its account then to be exchanged for definitive
Debt Securities (including any permanent Global Note), 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 Cedelbank, as the case
may be, shall be based on certificates of the account holders listed in the
records of the Euroclear Operator or Cedelbank, as the case may be, as being
entitled to all or any portion of the applicable temporary Global Note. An
account holder of the Euroclear Operator or Cedelbank, 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 (including any permanent Global Note)
shall instruct the Euroclear Operator or Cedelbank, as the case may be, to
request such exchange on its behalf and shall deliver to the Euroclear Operator
or Cedelbank, as the case may be, a certificate substantially in the form of
Exhibit A hereto and dated no earlier than 10 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 (including
any permanent Global Note) of the same series authenticated and delivered
hereunder, except as to payment of interest, if any.
The delivery to the Company, its agent or the Trustee by the Euroclear
Operator or Cedelbank of any certificate substantially in the form of Exhibit B
hereto may be relied upon by the Company, its agent and the Trustee as
conclusive evidence that a corresponding certificate or certificates has or have
been delivered to the Euroclear Operator or Cedelbank, 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 (or such other agent as may be specified as the Company's agent for such
purpose pursuant to Section 3.01) definitive Debt Securities in an 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 (and such other agents as may be specified for such
purpose pursuant to Section 3.01) by the Euroclear Operator or Cedelbank, as the
case may be, acting at the request of or on behalf of the beneficial owner, a
Debt Security represented by a temporary
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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 (or such agent) shall authenticate and deliver, 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 3.01, 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 or the
permanent 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 (and such agent as may be specified as the Company's agent for such
purpose pursuant to Section 3.01) of such notice with respect to a Debt
Security, 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 (or such other
agent as may be specified as the Company's agent for such purpose pursuant to
Section 3.01), 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 Euroclear Operator or
Cedelbank, as the case may be, and the Trustee (or such agent) 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) if a Bearer Security is to be delivered, deliver such
definitive Debt Security outside the United States to the Euroclear Operator or
Cedelbank, 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 Euroclear Operator or Cedelbank. Definitive Debt 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 3.01, interest payable on such
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temporary Global Note on an Interest Payment Date for Debt Securities of such
series occurring prior to the applicable Exchange Date shall be payable to the
Euroclear Operator or Cedelbank on such Interest Payment Date upon delivery by
the Euroclear Operator or Cedelbank to the Trustee (or such agent as may be
specified pursuant to Section 3.01) 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 Euroclear Operator or Cedelbank, 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 (or such agent) 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 Euroclear Operator or
Cedelbank, or by the Company to the Trustee (or such agent) in accordance with
the provisions of this Section 3.04.
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 (and any agent of the Company
appointed pursuant to Section 3.01 and referred to above) with a Company Request
and such form or forms, elimination or change is reasonably acceptable to the
Trustee (and any such agent).
(c) If the Company shall establish pursuant to Section 3.01 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 3.03 and the Company Order with
respect to such series, authenticate and deliver 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, and (iii) shall bear a legend
substantially to the following effect:
"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, unless and until this Debt Security is exchanged
in whole or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05,
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
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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 a clearing agency
registered and 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 deliver,
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 deliver, 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 the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly 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 deliver, 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 3.01 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 deliver, 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 an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
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(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 canceled 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 deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, 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.
Except as otherwise provided in Section 3.04 and this Section 3.05, at
the option of the Holder, Registered Securities of any series 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 deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 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
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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
12.03, 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
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of
Debt Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.04(b) or 3.06. The Company may
require payment of a sum sufficient to
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cover any tax or other governmental charge that may be imposed in connection
with any registration, transfer or exchange of Debt Securities, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption under Section 13.03 and
ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
Section 3.06. 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, or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Debt Security or any Coupon, and there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them and any Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Debt Security or Coupon has been acquired by a bona
fide purchaser, then the Company shall execute and upon Company Request the
Trustee shall authenticate and deliver, 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 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, 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,
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and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities or Coupons of that series
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.01 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01 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 provided pursuant to
Section 3.01, by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall, except
as otherwise provided in Section 12.03, 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 an office or agency of the Company in a Place of
Payment located outside the United States specified pursuant to Section 3.01.
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 an office
or agency of the Company in a Place of Payment located outside the United States
specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, 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 or, if agreeable to the
Trustee (or the Paying Agent specified pursuant to Section 3.01), 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 3.01, 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, if acceptable to
the Trustee or such Paying Agent, 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.
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(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, at least 25 days prior to the date of the proposed
payment, 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 Section 3.01 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 20 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
addresses 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
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the name and at the expense of the Company, in the manner provided in Section
1.05 not more than 20 days and not less than 10 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 3.08. Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Registered Securities and
matured Coupons so delivered shall be promptly canceled 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 canceled 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 3.05
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 3.06. 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 Debt 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 the Company 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 canceled by the Trustee. No
Debt Securities or Coupons shall be authenticated in lieu of or in exchange for
any Debt Securities or Coupons canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Debt Securities and Coupons
held by the Trustee shall be destroyed by the Trustee in accordance with its
customary procedures and a certificate of destruction 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 3.04 hereof and substantially in the form of Exhibit B hereto, to be
given by the Euroclear Operator or Cedelbank, have been duly presented to the
Trustee by the Euroclear Operator or Cedelbank, 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.
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Section 3.09. Computation of Interest.
Except as otherwise specified pursuant to Section 3.01 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 of Payments in Respect of Debt Securities.
(a) Except as otherwise specified pursuant to Section 3.01 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 3.01 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 reasonably 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 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, 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 is 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 3.01 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
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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 or any other Currency Unit in which any of the Debt 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 Debt
Securities denominated or payable in such Foreign Currency or such other
Currency Unit occurring after the last date on which such Foreign Currency 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 Debt 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, 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, 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, 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.
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 on the Conversion Date. If after the
Conversion Date the official unit of any
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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, 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 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 1.05 to the Holders) specifying the Conversion Date. In the event of a
Conversion Event with respect to any Currency Unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give written notice thereof to the Trustee (and the Trustee will promptly
thereafter give written notice in the manner provided in Section 1.05 to the
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent change
in any Component Currency as set forth in the definition of Specified Amount
above, the Company, after learning thereof, will similarly give written notice
to the Trustee. The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Currency
Determination Agent, if any and may, notwithstanding any other provision of this
Indenture, conclusively assume that no Conversion Event or other event of which
it is entitled to notice hereunder has occurred unless it receives
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written notice thereof as provided herein, 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 Business Day immediately prior to 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 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 Section 12.01, 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, upon receipt of a Company
Order, the Trustee will authenticate and deliver to the bearer of such permanent
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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.
Section 3.13. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Debt Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange or conversion of such Debt
Securities herein expressly provided for or expressly provided in the terms of
the Debt Securities of such series pursuant to Section 3.01, and rights to
receive payments of principal (and premium, if any) and interest on such Debt
Securities) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any,
of such series theretofore authenticated and delivered (other than (i)
Debt Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.06, (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 3.05, (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 13.06, 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 12.04) have been delivered to the
Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any,
of such series not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
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(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 Section 3.01 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 Company under this Indenture with
respect to such Debt Securities shall not be deemed terminated or
discharged;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with; and
(4) the Company has delivered to the Trustee an Opinion
of Counsel or a ruling by the Internal Revenue Service to the effect
that such deposit and discharge will not cause Holders of the Debt
Securities of the series to recognize income, gain or loss for Federal
income tax purposes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in subclause (B) of
clause 1 of this Section 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 such deposit was made, or (y) if a
Conversion Event occurs with respect to the Currency in which such 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 such deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
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Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 12.04, all
money deposited with the Trustee pursuant to Section 4.01 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 5.01. 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) 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
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 a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
State law, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(2) the commencement by the Company 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
of any substantial part of its property, or the making by it of an assignment
for the benefit of its creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(3) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
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Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at
that 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 the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount), plus accrued and unpaid interest (and premium, if
any), 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 Section 3.01 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 in this
Article provided, 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 Section 3.01 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,
(C) to the extent that payment of such interest
is lawful, interest upon overdue
installments of interest on each Debt
Security of such series or upon overdue
payments on any Coupons of such series at
the Overdue Rate, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; provided,
however, that all sums payable under this
clause (D) shall be paid in Dollars; and
(2) All Events of Default with respect to Debt Securities
of such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
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No such rescission and annulment shall affect any subsequent default or
impair any right consequent thereon.
Section 5.03. 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 of 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, (i) the amount then due and
payable on such Debt Securities or matured Coupons for the principal (and
premium, if any) and interest, if any, (ii) 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 (iii) thereafter, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If any default in the payments referred to in Section 12.01 or 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 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any
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voluntary or involuntary case under the applicable Federal or State bankruptcy,
insolvency or similar law, as now or hereafter constituted, relative to the
Company or any other obligor upon the Debt Securities and Coupons, if any, of a
particular series or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(or, if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such series
pursuant to a declaration in accordance with Section 5.02) (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 and take such other
actions, including participating as a member, voting or otherwise, of any
committee of creditors appointed in the matter, as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders of such Debt Securities and Coupons
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
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Section 5.06. 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
6.07.
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
THIRD: Subject to Article Sixteen, the balance, if any, to the Person
or Persons entitled thereto.
Section 5.07. 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
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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 of such Holders. For the protection and enforcement of the provisions of
this Section 5.07, 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 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, 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 3.07) 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) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. 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 or default in the payments
referred to in Section 12.01 shall impair any such right or remedy or constitute
a waiver of any such Event of Default or default or any acquiescence therein.
Every right and remedy given by this Indenture or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
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Section 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 or 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 6.01, 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;
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(4) this provision shall not affect the rights of the Trustee set
forth in Section 6.01(c)(4).
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, by notice to the Trustee and the
Company, any past default or Event of 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 Event of 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,
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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 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 this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of a default in the payments
referred to in Section 12.01 or an Event of Default with respect to the Debt
Securities of any series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case a default in the payments referred to in Section 12.01
or an Event of Default with respect to Debt Securities of any series has
occurred and is continuing, the Trustee shall, with respect to the Debt
Securities of such series, exercise such of the rights and powers
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vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) Subject to Section 6.04, no provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to
Debt Securities of any series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture;
(4) the Trustee shall not be required 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; and
(5) the Trustee shall not be charged with knowledge of
any default or Event of Default or any other act or circumstance upon
the occurrence of which the Trustee may be required to take action
unless a Responsible Officer of the Trustee obtains actual knowledge of
such default, Event of Default, act or circumstance or unless written
notice referencing this Indenture or the Debt Securities is received by
the Trustee at the Corporate Trust Office.
(d) 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 6.02. 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
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
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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. 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.
Notice given pursuant to this Section 6.02 with respect to Registered
Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have
within two years preceding such transmission, filed their names and addresses
with the Trustee for such series for that purpose;
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.02 with respect to Bearer
Securities shall be transmitted in the manner set forth in Section 1.05.
Section 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, 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 Officers' 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;
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(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; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. 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. The Trustee assumes no
responsibility for the accuracy of any statements in any registration statement
relating to the Debt Securities.
Section 6.05. 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 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. 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 6.07. Compensation and Reimbursement.
The Company agrees:
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(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and the 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 connection with
the administration of the trusts herein set forth (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability, damage, claims or expense, including
taxes (other than taxes based upon, measured by or determined by 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 and in addition to its rights under Section 5.06, 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 particular Debt Securities and Coupons. The
fees and expenses incurred by the Trustee in connection with any bankruptcy of
the Company shall constitute fees and expenses of administration; provided,
however, that this shall not affect the Trustee's rights as set forth in the
preceding sentence or Section 5.06.
Section 6.08. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section with respect to the Debt Securities of any series,
then, within 90 days after ascertaining that it has such conflicting interest,
and if the default (as hereinafter defined) to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the end
of such 90 day period, the Trustee shall either eliminate such conflicting
interest or, except as otherwise provided below, resign with respect to the Debt
Securities of such series, and the Company shall take prompt steps to have a
successor appointed, in the manner and with the effect hereinafter specified in
this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such 90
day period, transmit to all Holders of Debt Securities of such series notice of
such failure.
Notice given pursuant to this Section 6.08(b) with respect to
Registered Securities shall be transmitted by mail:
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(1) to all Registered Holders, as the names and addresses
of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
(3) to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.08(b) with respect to
Bearer Securities shall be transmitted in the manner set forth in Section 1.05.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Debt Securities of any
series, if there shall exist an Event of Default (as such term is defined
herein, but exclusive of any period of grace or requirement of notice) or a
default in the payments referred to in Section 12.01 with respect to such Debt
Securities and
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Debt Securities of any series other than
that series or is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, unless such other indenture
is a collateral trust indenture under which the only collateral
consists of Debt Securities issued under this Indenture, provided that
there shall be excluded from the operation of this paragraph of this
Indenture with respect to the Debt Securities of any series other than
that series and any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder) are
wholly unsecured and rank equally and such other indenture or
indentures are hereafter qualified under the Trust Indenture Act,
unless the Commission shall have found and declared by order pursuant
to Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with respect
to the Debt Securities of such series and one or more other series or
the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary, in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to the Debt Securities of such series and such other series or
under such other indenture or indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
the Debt Securities of such series and such other series or such other
indenture or indentures is not so likely to involve a material conflict
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of interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debt Securities of such series
and such other series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Company but may not
be at the same time an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a
director of the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depositary or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this subsection, to act
as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee
is beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Debt Securities issued under this Indenture
and securities issued under any other indenture under which the Trustee
is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to
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the knowledge of the Trustee, owns 50% or more of the voting securities
of the Company;
(9) the Trustee owns, on the date of such Event of
Default or any anniversary of such Event of Default while such Event of
Default remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian, committee
or conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of not more
than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after
the dates of any such Event of Default and annually in each succeeding
year that such Event of Default continues, the Trustee shall make a
check of its holdings of such securities in any of the abovementioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of (or premium, if any) or interest on any of the
Debt Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
abovementioned capacities as of the date of the expiration of such 30
day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraph
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term
"series of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the Trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another series; provided that "series
of securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to
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evidence an obligation to repay moneys lent to a person by one or more banks,
trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an obligation
shall be deemed to be "in default" when a default in payment of principal shall
have continued for 30 days or more and shall not have been cured; and (iii) the
Trustee shall not be deemed to be the owner or holder of (A) any security which
it holds as collateral security, as trustee or otherwise, for an obligation
which is not in default as defined in clause (ii) above, or (B) any security
which it holds as collateral security under this Indenture, irrespective of any
default hereunder, or (C) any security which it holds as agent for collection,
or as custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to
the Company means every person who, within one year prior to the time
as of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in excess
of the usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation, or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation,
a partnership, an association, a joint stock company, a trust, an
estate, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangements
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the direction
or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the secretary,
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
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(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this paragraph)
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount," when used with regard to
securities, means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares, and
the number of units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to principal
or interest or otherwise; and
(iv) securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
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(f) Except in the case of a default in the payment of the
principal of or interest on any Debt Security of any series, or in the payment
of any sinking or purchase fund installment, the Trustee shall not be required
to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(1) the Event of Default or default in the payments
referred to in Section 12.01 may be cured or waived during a reasonable
period and under the procedures described in such application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
Section 6.09. 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 $50,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority and eligible to act as Trustee hereunder in
compliance with Section 310(a)(1) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor any
person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series, and a successor Trustee appointed, by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, delivered to the Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(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
6.09 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
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 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 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the
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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 6.07.
(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 to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates, but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee
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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 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.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such default, then, unless and
until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Debt Securities and of the Coupons, if any, and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three-month
period and valid as against the Company and its other creditors, except
any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-month period, or an amount equal to the
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proceeds of any such property, if disposed of, subject, however, to the
rights, if any, of the Company and its other creditors in such property
or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third Person, and (iii)
distributions made in cash, securities or other property in respect of
claims filed against the Company in bankruptcy or receivership or in
proceedings or reorganization pursuant to the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any property held
by it as security for any such claim, if such claim was created after
the beginning of such three-month period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months, or
(D) to receive payment on any claim referred to
in paragraph (B) or (C) against the release of any property held as
security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in
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bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, whether such distribution is made in cash,
securities, or other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee and the Holders and the holders
of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
Lien of this Indenture or of discharging tax liens or other prior liens
or encumbrances thereon, if notice of such advances and of the
circumstances
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surrounding the making thereof is given to the Holders at the time and
in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented, or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in subsection
(c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) The acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment
in full of the principal of or interest on any of the Debt Securities
or upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means
securities upon which the Company is an obligor outstanding under any
other indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
(3) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks and payable upon demand.
(4) The term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from
the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt
Securities.
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Section 6.14. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there 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. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
or 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 1.05. 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 Trustee for the Debt Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services, and the Trustee shall be entitled to be reimbursed for such
payment, subject to the
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provisions of Section 6.07. The Authenticating Agent for the Debt Securities of
any series shall have no responsibility or liability for any action taken by it
as such in good faith and without negligence at the direction of the Trustee for
such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
--------------------------------------------
As Trustee
Dated: By:
-----------------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. 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 semiannual dates in each year to be
determined pursuant to Section 3.01 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 semiannual dates, as
the case may be); and
(b) at such other times as the Trustee may request in writing,
within 15 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
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other than the Trustee as to the names and addresses of the Holders of Bearer
Securities of all series; provided, however, that the Company shall have no
obligation to investigate any matter relating to any Holders of Bearer
Securities of any series.
Section 7.02. 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 7.01 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
7.03(c)(2).
The Trustee may destroy any list furnished to it as provided in Section
7.01 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 7.03(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
7.02(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
7.02(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(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
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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 7.02(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 7.02(b).
Section 7.03. Reports by Trustee.
(a) Within 60 days after May 30 of each year, commencing May 30,
2000, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.03, a
brief report dated as of such date with respect to any of the following events
which may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and
its qualifications under Section 6.08;
(2) the creation of or any material change to a
relationship specified in paragraph (1) through (10) of Section 6.08(c)
of this Indenture;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Outstanding Debt
Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company (or any other
obligor on the Debt Securities of such series) to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor,
except an indebtedness
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based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of such
report;
(6) any additional issue of Debt Securities which the
Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which in
its opinion materially affects the Debt Securities of such series,
except action in respect of a default, notice of which has been or is
to be withheld by the Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02 (a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.03 with respect to
Registered Securities shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders of Registered Securities appear in the
Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection
(b) of this Section 7.03, to each Holder of a Debt Security of any
series whose name and address appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a).
Reports pursuant to this Section 7.03 with respect to Bearer Securities shall be
published in accordance with Section 1.05.
(d) 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 of such series are
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listed, with the Commission and also with the Company. The Company will notify
the Trustee when any series of Debt Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may be
required from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and
to the extent provided in Section 7.03, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. 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
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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 8.02. Proof of Ownership; Proof of Execution of Instruments
by Holder.
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 that 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 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or 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 acknowledgments 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 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
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Section 8.03. 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 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, 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 8.02,
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, subject to the provisions of Section 5.08, 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 9.01. 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 or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of Article Five;
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(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 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
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 9.02. 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 9.01, 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 1.05. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. 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 10% 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 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. 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
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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 9.03, 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 3.01) 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 9.02 or 9.03 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 9.06. 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 taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.02. 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.
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Section 9.07. 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 or of the
Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease all or substantially all of its properties and
assets to any Person, and the Company shall not permit any Person to consolidate
with or merge into the Company or convey, transfer or lease all or substantially
all of its properties and assets to the Company, unless:
(1) in case the Company shall consolidate with or merge
into another person or convey, transfer or lease all or substantially
all of its properties and assets to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Company shall be
a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture 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 occurred and be
continuing; and
(3) if, as a result of any such consolidation or merger
or such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this
Indenture, the Company or such successor Person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Debt Securities equally and ratably with (or prior to) all Indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
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Section 10.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 10.01, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, 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 Person shall be relieved of all obligations and
covenants under this Indenture and the Debt Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
Without prior notice to or 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
rights of the Company and the assumption by such successor of the covenants and
other obligations of the Company herein and in the Debt Securities and Coupons,
if any, 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
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(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 Article Four, 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 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
to eliminate any conflict between the terms of this Indenture or the Debt
Securities and the Trust Indenture Act 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 alter the provisions of Section 3.10 (e) hereof and
establish any other provisions in respect of Debt Securities issued in a Foreign
Currency; provided that any such change 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 provisions and as to which such supplemental indenture would apply.
Section 11.02. Supplemental Indentures With Consent of Holders.
With the written 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 or Coupons, if any; provided,
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however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Debt Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or installment
of interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption thereof,
or change the Stated Maturity of or reduce the amount of any payment to be made
with respect to any Coupon, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02, 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 limit the
obligation of the Company to maintain a paying agency outside the United States
for payment on Bearer Securities as provided in Section 12.03; 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 or Events of Default hereunder and their consequences provided for in
this Indenture; or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.07, 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 of each series 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 12.07, or the deletion of
this proviso, in accordance with the requirements of Sections 6.11 and 11.01(7);
or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Debt Securities in a manner adverse to the Holders.
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.
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Section 11.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by 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 11.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 11.05. 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 11.06. 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 11.07. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 11.02, the Company shall
transmit, in the manner and to the extent provided in Section 1.05, 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.
Section 11.08. Effect on Senior Indebtedness.
No supplemental indenture entered into under this Article 11 shall
modify, directly or indirectly, the provisions of Article Sixteen or the
definition of Senior Indebtedness in Section 1.01 in any manner that might alter
or impair the subordination of the Debt Securities
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with respect to the Senior Indebtedness then Outstanding, unless each holder of
such Senior Indebtedness has consented thereto in writing.
ARTICLE TWELVE
COVENANTS
Section 12.01. 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 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, 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. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, 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 only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
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, a certificate of
the principal executive officer, principal financial officer or principal
accounting officer of the Company stating whether or not to the best knowledge
of the signer thereof the Company is in compliance with all covenants and
conditions under this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which such signer may
have knowledge. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain or cause to be maintained 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 or
redemption, 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, if any, may be
presented or surrendered for payment, where any Registered Securities of that
series, if any, may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for exchange or redemption, where
Debt Securities of that series that are
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convertible may be surrendered for conversion, 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 Bearer
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt
Securities of that series, if so provided pursuant to Section 3.01); 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 Paying 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 exchange and redemption,
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 locations, and any change in
the locations, of such offices or agencies. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related Coupons may be
presented and surrendered for payment at the offices specified in the applicable
Debt Security, and the Company hereby appoints the Trustee, or in the case of
Bearer Securities, such other agent as is specified pursuant to Section 3.01, 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, if so provided
pursuant to Section 3.01) shall be made at the office of the Trustee or the
Company's Paying Agent in the Borough of Manhattan, The City and State of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
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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 12.04. 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 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 or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents 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 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.
Subject to any applicable abandoned property law, 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
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(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, in its sole discretion, at the expense of the
Company cause to be transmitted in the manner and to the extent provided by
Section 1.05, 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 12.05. Corporate Existence.
Subject to the provisions of 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
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 12.06. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 12.05 (and, if so specified
pursuant to Section 3.01, any other covenant not set forth herein and specified
pursuant to Section 3.01 to be applicable to the Debt Securities of any series,
except as otherwise provided pursuant to Section 3.01) 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 term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent expressly so waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. 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 3.01 for Debt Securities of any series)
in accordance with this Article.
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Section 13.02. 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 13.03, the Company shall, at least 60 days before 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 13.03. Selection by Trustee of Debt Securities to Be
Redeemed.
Except in the case of a redemption in whole of the Bearer Securities or
the Registered Securities of such series, if less than all the Debt Securities
of any series are to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.02 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 3.02 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 when 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.
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 13.04. 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
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redeemed in whole or in part pursuant to this Article Thirteen, in the manner
provided in Section 1.05. 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;
(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 3.05(b) or otherwise, the last date
on which such exchanges may be made; and
(9) that the redemption is for a sinking fund, if such is the
case.
Section 13.05. Deposit of Redemption Price.
On or prior to 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 12.04) an amount of money in the Currency or Currencies in which such
Debt Securities are denominated (except as provided pursuant to
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Section 3.01 or 3.10) sufficient to pay the Redemption Price of such Debt
Securities or any portions thereof which are to be redeemed on that date.
Section 13.06. 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 Section 3.01
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. 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 12.03) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.01, 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 3.07.
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.
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 13.07. 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 3.01 (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 3.01
(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
deliver 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
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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 14.01. 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 3.01 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 14.02. 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 14.02. Satisfaction of Mandatory Sinking Fund Payments with
Debt Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such sinking fund payment and stating that the Debt Securities
of such series were originally issued by the Company by way of bona fide sale or
other negotiation for value, provided that such Debt Securities shall not have
been previously so credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 14.03. 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
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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 3.01 or 3.10) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Debt Securities of such series pursuant to Section 14.02 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 14.02 and without the right to
make any optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) 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 12.04) 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 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 13.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.04. 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 13.06.
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 12.04) in cash a sum,
in the Currency or Currencies in which Debt
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Securities of such series are denominated (except as provided pursuant to
Sections 3.01 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 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 or prior
to 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 FIFTEEN
INTENTIONALLY OMITTED
ARTICLE SIXTEEN
SUBORDINATION
Section 16.01. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Debt Securities of any series (or of any Coupons
appertaining thereto) by his acceptance thereof, likewise covenants and agrees,
for himself, his successors and assigns, that the indebtedness represented by
the Debt Securities of such series then Outstanding (and any Coupons
appertaining thereto) and the payment of the principal of (and premium, if any)
and interest on each and all of the Debt Securities of such series (including,
without limitation, any payment of Coupons appertaining thereto) is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
Each reference in this Article to a "Debt Security" or "Debt Securities" refers
to the Debt Securities of a particular series, and references to a "Coupon" or
"Coupons" refer to the Coupons, if any, appertaining to the Debt Securities of
such series. Without limiting the generality of the immediately preceding
sentence, if more than one series of Debt Securities are
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outstanding at any time, (i) the provisions of this Article shall be applied
separately to each such series, and (ii) references to the Trustee refer to the
Trustee for the Debt Securities of such series.
Section 16.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Debt Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization, of the Company, whether voluntary or
involuntary and whether in bankruptcy, insolvency, reorganization, receivership
or other proceedings or upon an assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of the Company or otherwise
(subject to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights conferred in this Indenture upon the
Senior Indebtedness and the holders thereof with respect to the Debt Securities
and the Holders thereof by a plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Debt Securities (or of any
Coupons) are entitled to receive any payment upon the principal (and premium, if
any) or interest on indebtedness evidenced by the Debt Securities (or any
payment of any Coupons); and
(b) any payment or distribution of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Debt Securities (or of any Coupons) or the Trustee would be entitled except for
the provisions of this Article Sixteen shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal
of (and premium, if any) and interest on the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee, any Paying Agent
or the Holders of the Debt Securities (or any Coupons) before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid over,
upon written notice to the Trustee or such Paying Agent, to the holder of such
Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instrument evidencing any of
such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or
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transfer of its property as an entirety, or substantially as an entirety, to
another corporation shall not be deemed a dissolution, winding up, liquidation
or reorganization for the purposes of this Section 16.02.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Debt Securities (and of any Coupons) shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Debt Securities
(including, without limitation, payment of the Coupons) shall be paid in full,
and no such payments or distributions to the Holders of the Debt Securities (or
of any Coupons) of cash, property, or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Debt
Securities (and of any Coupons) be deemed to be a payment by the Company to or
on account of the Debt Securities (or of any Coupons). It is understood that the
provisions of this Article Sixteen are and are intended solely for the purpose
of defining the relative rights of the Holders of the Debt Securities (and of
any Coupons), on the one hand, and the holders of the Senior Indebtedness, on
the other hand.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities (or any Coupons) is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debt Securities (and of any Coupons), the
obligation of the Company, which is unconditional and absolute (and which,
subject to the rights under this Article of the holders of Senior Indebtedness
and the rights under Section 16.11 of Entitled Persons in respect of Other
Financial Obligations, is intended to rank equally with all other obligations of
the Company), to pay to the Holders of the Debt Securities (and of any Coupons)
the principal of (and premium, if any) and interest on the Debt Securities
(including, without limitation, payment of any Coupons) as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Debt Securities (or of any Coupons) and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or in the Debt Securities (or Coupons) prevent the Trustee
or the Holder of any Debt Security (or any Coupon) from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Sixteen of the holders of Senior
Indebtedness, and under Section 16.11 of Entitled Persons in respect of Other
Financial Obligations, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Section 16.02, the Trustee and any Paying Agent, subject to the
provisions of Section 6.03, shall be entitled to rely upon a certificate or
other writing of the liquidating trustee or agent or other Person making any
distribution to the Trustee for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent to
this Article Sixteen.
Except as specifically set forth herein, neither the Trustee nor any
Paying Agent, however, shall be deemed to owe any fiduciary or other duty to the
holders of Senior
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Indebtedness or Entitled Persons in respect of Other Financial Obligations.
Neither the Trustee nor any Paying Agent shall be liable to any such holder or
Entitled Person if it shall in good faith pay or distribute to or on behalf of
Holders of Debt Securities (or of any Coupons) of the Company moneys or assets
to which any holder of Senior Indebtedness or Entitled Persons in respect of
Other Financial Obligations shall be entitled by virtue of this Article Sixteen
or any other instrument.
If the Trustee or any Holder of Debt Securities (and of any Coupons)
does not file a proper claim or proof of debt in the form required in any
proceeding referred to above prior to 30 days before the expiration of the time
to file such claim in such proceeding, then the holder of any Senior
Indebtedness is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder of Debt Securities (or of any
Coupons).
Section 16.03. No Payment on Debt Securities in Event of Default on
Senior Indebtedness.
No payment by the Company on account of principal (or premium, if any),
sinking funds or interest on the Debt Securities (including, without limitation,
payment of any Coupons) shall be made unless full payment of amounts then due
for principal, premium, if any, sinking funds, and interest on Senior
Indebtedness has been made or duly provided for. In the event that any event of
default with respect to any Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or in the event any judicial proceeding shall be pending with respect
to any such default in payment, or event of default, then no payment shall be
made by the Company on account of principal of (or premium, if any) or interest
on the Debt Securities of any series or on account of the purchase or other
acquisition of Debt Securities of any series; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Fourteen by delivering and crediting pursuant to Section
14.02 Debt Securities of such series which have been acquired (upon redemption
or otherwise) prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debt Security of any series
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 16.02 would be applicable.
Section 16.04. Payments on Debt Securities Permitted.
Nothing contained in this Indenture or in any of the Debt Securities
(or any Coupons) shall (a) affect the obligation of the Company to make, or
prevent the Company from making, at
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any time except as provided in Sections 16.02 and 16.03, payments of principal
(and premium, if any) or interest on the Debt Securities (including, without
limitation, payment of any Coupons) or (b) prevent the application by the
Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest on the Debt
Securities (including, without limitation, the payment of any Coupons), unless
the Trustee shall have received at its Corporate Trust Office written notice of
any event prohibiting the making of such payment more than two Business Days
prior to the date fixed for such payment.
Section 16.05. Authorization of Holders to Trustee to Effect
Subordination.
Each Holder of Debt Securities (or of any Coupons) by his acceptance
thereof and any Paying Agent (other than the Company) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Sixteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
Section 16.06. Notices to Trustee.
The Company shall give prompt written notice to the Trustee and any
Paying Agent (other than the Company) of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee or such Paying
Agent in respect of the Debt Securities (or any Coupons) pursuant to this
Article Sixteen. Failure to give such notice shall not affect the subordination
of the Debt Securities (or any Coupons) to Senior Indebtedness. Notwithstanding
the provisions of this Article or any other provisions of this Indenture,
neither the Trustee nor any Paying Agent (other than the Company) shall be
charged with knowledge of the existence of any Senior Indebtedness or other
Financial Obligations or of any event which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and until
the Trustee or such Paying Agent shall have received (in the case of the
Trustee, at its Corporate Trust Office) written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the trustee for any such
holder or from any Entitled Person in respect of Other Financial Obligations,
together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or Other Financial Obligations or of the authority of such trustee;
provided, however, that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of either the principal of (and
premium, if any) or interest on any Debt Security (including, without
limitation, the payment of any Coupons)) the Trustee or any such Paying Agent
shall not have received with respect to such moneys the notice provided for in
this Section 16.06, then, anything herein contained to the contrary
notwithstanding, the Trustee or any such Paying Agent shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary,
which may be received by it less than two Business Days prior to such date. The
Trustee or any such Paying Agent shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) or an Entitled Person in
respect of Other Financial Obligations to establish that such a notice has been
given by a holder of Senior Indebtedness or a trustee on behalf of any such
holder or an Entitled Person in respect of Other Financial Obligations. In the
event that the Trustee or any such Paying Agent determines in good faith that
further evidence is required with respect to the right
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of any Person as a holder of Senior Indebtedness or an Entitled Person in
respect of Other Financial Obligations to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee or any such Paying
Agent may request such Person to furnish evidence to the reasonable satisfaction
of the Trustee or any such Paying Agent as to the amount of Senior Indebtedness
or Other Financial Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Sixteen and, if
such evidence is not furnished, the Trustee or any such Paying Agent may defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
Section 16.07. Trustee as Holder of Senior Indebtedness.
Subject to the provisions of Section 6.13, the Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article Sixteen in respect of any Senior Indebtedness at any time held by it and
with respect to any Other Financial Obligations owed to the Trustee as an
Entitled Person, to the same extent as any other holder of Senior Indebtedness
or Entitled Person in respect of Other Financial Obligations and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder or Entitled Person.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
Section 16.08. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Debt Securities (or
of any Coupons) or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Debt Securities (or of any Coupons) relating to the
subordination thereof.
Section 16.09. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee and the Holders of the Debt Securities (and
of any Coupons) shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which any insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or upon a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Debt
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Securities (or of any Coupons), for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company and the Entitled Persons in
respect of Other Financial Obligations, the amount thereof or payable therein,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
Section 16.10. Article Sixteen Not to Prevent Events of Default.
No provision of this Article Sixteen shall prevent the occurrence of
any default or Event of Default hereunder.
Section 16.11. Payment of Proceeds in Certain Cases.
(a) If, after giving effect to the provisions of Section 16.02,
any amount of cash, property or securities shall be available for payment or
distribution in respect of the Debt Securities ("Excess Proceeds"), and any
Entitled Persons in respect of Other Financial Obligations shall not have
received payment in full of all amounts due or to become due on or in respect of
such Other Financial Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds shall first
be applied by the liquidation trustee or other person making such payment or
distribution (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other Indebtedness of the Company
that by its express terms provides for the payment over of amounts corresponding
to Excess Proceeds to Entitled Persons in respect of Other Financial
Obligations) to pay or provide for the payment of the Other Financial
Obligations remaining unpaid, to the extent necessary to pay all Other Financial
Obligations in full, after giving effect to any concurrent payment or
distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all Other Financial Obligations shall be available for
payment or distribution in respect of the Debt Securities.
(b) In the event that, notwithstanding the foregoing provisions of
subsection (a) of this Section, the Trustee or Holder of any Debt Security shall
have received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, before all Other
Financial Obligations are paid in full or payment thereof duly provided for, and
if such fact shall, at or prior to the time of such payment or distribution have
been made known to the Trustee in accordance with Section 16.06 or, as the case
may be, such Holder, then and in such event, subject to any obligation that the
Trustee or such Holder may have pursuant to Section 16.02, upon written notice
to the Trustee such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for payment in accordance with subsection (a).
(c) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Debt Securities shall be subrogated (equally and
ratably with the holders of all Indebtedness of the Company that by its express
terms provides for the payment over of amounts corresponding to Excess Proceeds
to Entitled Persons in respect of other Financial Obligations and is entitled to
like rights of subrogation) to the rights of the Entitled Persons in respect of
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Other Financial Obligations to receive payments and distributions of cash,
property and securities applicable to the Other Financial Obligations until the
principal of and interest on the Debt Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to Entitled Persons
in respect of Other Financial Obligations of any cash, property or securities to
which Holders of the Debt Securities or the Trustee would be entitled except for
the provisions of this Section, and no payments over pursuant to the provisions
of this Section to Entitled Persons in respect of Other Financial Obligations by
Holders of Debt Securities or the Trustee, shall, as among the Company, its
creditors other than Entitled Persons in respect of Other Financial Obligations
and the Holders of Securities be deemed to be a payment or distribution by the
Company to or on account of the Other Financial Obligations.
(d) The provisions of subsections (a), (b) and (c) of this Section
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Debt Securities, on the one hand, and the Entitled Persons in
respect of Other Financial Obligations, on the other hand, after giving effect
to the rights of the holders of Senior Indebtedness, as provided in this
Article. Nothing contained in subsections (a), (b) and (c) of this Section is
intended to or shall affect the relative rights against the Company of the
Holders of the Debt Securities and (1) the holders of Senior Indebtedness or (2)
other creditors of the Company other than Entitled Persons in respect of Other
Financial Obligations.
----------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall constitute an original and all of which together shall
constitute one and the same instrument.
95
<PAGE> 102
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.
UNION PLANTERS CORPORATION
By:
--------------------------------------------
Name: Benjamin W. Rawlins, Jr.
Title: Chairman and Chief Executive Officer
Attest:
- -------------------------------------
Name: E. James House, Jr.
Title: Secretary
Seal
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-------------------------------------------
Name:
Title:
Attest:
- -------------------------------------
Name:
Title:
Seal
96
<PAGE> 103
STATE OF TENNESSEE )
) ss.:
COUNTY OF SHELBY )
On the _____ day of __________, 1999, before me personally came
Benjamin W. Rawlins, Jr., to me known, who, being by me duly sworn, did depose
and say that he resides at _____________________________, Memphis, Tennessee;
that he is the Chairman and Chief Executive Officer of Union Planters
Corporation, 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
97
<PAGE> 104
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of __________, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that she resides at _______________ that she is _______________ of The First
National Bank of Chicago, one of the corporations described in and which
executed the foregoing instrument; that she 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 she
signed her name thereto by like authority.
------------------------------------
Notary Public
SEAL
98
<PAGE> 105
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------------
[Insert title or sufficient description
of Debt Securities to be delivered]
This certificate is delivered pursuant to the Indenture, dated
as of _________ __, ____ (as amended, supplemented or otherwise modified from
time to time, the "Indenture"), between Union Planters Corporation and [ ], as
Trustee. Unless otherwise defined herein, terms defined in the Indenture are
used herein as so defined.
This is to certify that as of the date hereof and except as
set forth below ___________ principal amount of the above captioned securities
(the "Debt Securities") held by you for our account (i) is owned by person(s)
that are not United States person(s) (as defined below), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in Section 1.16512(c)(1)(v) of the United States
Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who 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, on its own behalf or through its agent,
that you may advise the Company or the Company's agent that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the Treasury regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.1635(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Debt Securities is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) this is to further certify that
such financial institution has not acquired the Debt Securities for the purpose
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
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 beneficial interest in the temporary Global Note 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 it may
be assumed that this certification applies as of such date.
1
<PAGE> 106
This certificate excepts and does not relate to ___________
principal amount of Debt Securities held by you for our account as to which we
are not able to provide a certificate in this form. We understand that exchange
of such portion of the temporary Global Note for definitive Bearer Securities or
interests in a permanent Global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source. "United States" means the United States of America (including the States
and the District of Columbia) and its "possessions" which include the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
Dated:_______________________, 19__
[To be dated no earlier than the 10th day before the Exchange Date]
By:
--------------------------------------------
As, or as agent for, the beneficial owner(s)
of the portion of the temporary global Note
to which this certificate relates.
2
<PAGE> 107
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY [EUROCLEAR] AND
[Cedelbank, S.A.] IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
--------------------------
(Insert title or sufficient description
of Debt Securities to be delivered]
This certificate is delivered pursuant to the Indenture, dated
as of _________ __, ____ (as amended, supplemented or otherwise modified from
time to time, the "Indenture"), between Union Planters Corporation and [ ], as
Trustee. Unless otherwise defined herein, terms defined in the Indenture are
used herein as so defined.
The undersigned certifies 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 person(s) that are not United States person(s) (as defined below), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.16512(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who 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 has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company'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 Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.1635(c)(2)(i)(D)(7) of the
United States Treasury regulations), and in addition United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that 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.
1
<PAGE> 108
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source. "United States" means the United States of America (including the States
and the District of Columbia) and its "possessions" which include the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
Dated: _________________________, 19__
[To be dated no earlier than the
Exchange Date]
By:
----------------------------------
[Operator of the Euroclear System]
[Cedelbank]
2
<PAGE> 1
OPINION OF WYATT, TARRANT & COMBS
EXHIBIT 5.1
[LETTERHEAD OF WYATT, TARRANT & COMBS]
August 13, 1999
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Re: Union Planters Corporation
Registration Statement on Form S-3
Dear Ladies and Gentlemen:
We have acted as special counsel to Union Planters Corporation, a
Tennessee corporation ("Union Planters"), in connection with the preparation of
the Registration Statement on Form S-3 (No. 333-_______) (the "Registration
Statement") filed with the Securities and Exchange Commission (the "Commission")
on August 13, 1999 under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to the issuance and sale from time to
time, pursuant to Rule 415 of the General Rules and Regulations of the
Commission promulgated under the Securities Act, of senior or subordinated debt
securities of Union Planters, in one or more series, with an aggregate initial
public offering price of up to $600,000,000, or the equivalent thereof in one or
more foreign currencies or composite currencies (the "Debt Securities"), which
may be issued under Indentures (the "Indentures") proposed to be entered into
between Union Planters and The First National Bank of Chicago (the "Trustee").
<PAGE> 2
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of:
(i) the Registration Statement;
(ii) the forms of two Indentures filed as exhibits to the Registration
Statement;
(iii) the Amended and Restated Charter of Union Planters, as presently
in effect;
(iv) the By-laws of Union Planters, as presently in effect;
(v) certain resolutions of the Board of Directors of Union Planters
adopted at a meeting duly held on July 16, 1999 and of the Executive Committee
of the Board of Union Planters adopted at a meeting held on August 9,1999
(collectively, the "Board Resolutions") relating to the issuance and sale of the
Debt Securities and related matters.
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of Union Planters and such
agreements, certificates of public officials, certificates of officers or other
representatives of Union Planters and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than Union
Planters, we have assumed that such parties had or will have the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and the
validity and binding effect thereof. As to any facts material to the opinions
expressed herein which were not independently established or verified, we have
relied upon oral or written statements and representations of officers and other
representatives of Union Planters and others.
You should note that Union Planters and the Trustee have agreed that
the Indentures will be governed by the laws of the State of New York. We are
licensed to practice only in the State of Tennessee and therefore, we do not
express any opinion as to the laws of any jurisdiction other than those of the
State of Tennessee. In rendering this opinion we have assumed, with your
approval, that the relevant provisions of New York law differ in no material
respect from the relevant provisions of the laws of the State of Tennessee.
<PAGE> 3
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the authorized officers of Union Planters have taken all
necessary corporate action to fix and determine the terms of the Offered Debt
Securities in accordance with the Board Resolutions; (ii) the terms of the
Offered Debt Securities and of their issuance and sale have been duly
established in conformity with the applicable Indenture so as not to violate any
applicable law, the Amended and Restated Charter or By-laws of Union Planters or
result in a default under or breach of any agreement or instrument binding upon
Union Planters, and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over Union Planters; (iii)
the applicable Indenture has been duly executed and delivered; and (iv) the
Offered Debt Securities have been duly executed and authenticated in accordance
with the terms of the applicable Indenture and duly delivered to the purchasers
thereof upon payment of the agreed-upon consideration therefor, the issuance and
sale of the Offered Debt Securities will have been duly authorized, and the
Offered Debt Securities will be valid and binding obligations of Union Planters
entitled to the benefits of the applicable Indenture, except to the extent that
(x) enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally, (2) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and (3) governmental authority to limit, delay
or prohibit the making of payments outside the United States or in foreign
currency or composite currency and (y) the waiver contained in Section 5.15 of
the applicable Indenture may be deemed unenforceable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Opinions" in the Registration Statement. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Securities
Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Wyatt, Tarrant & Combs
<PAGE> 1
EXHIBIT 12.1
UNION PLANTERS CORPORATION
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEARS ENDED DECEMBER 31,
------------------ ---------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-----------------------------------------------------------------------------
INCLUDING INTEREST ON DEPOSITS: (Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before Income Taxes $306,989 $286,389 $ 371,922 $ 515,849 $ 445,757 $ 471,537 $324,440
Add:
Interest Expense & Amortization
of Debt Issuance Costs 512,600 550,379 1,107,148 1,064,586 1,011,241 897,649 654,258
Portion of Operating Lease Rents
Representative of the Interest Factor 5,198 4,588 10,760 8,797 7,475 8,090 7,394
-------- -------- ---------- ---------- ---------- ---------- --------
Earnings As Adjusted $824,787 $841,356 $1,489,830 $1,589,232 $1,464,473 $1,377,276 $986,092
======== ======== ========== ========== ========== ========== ========
FIXED CHARGES:
Deposits $419,300 $442,438 $ 896,062 $ 853,921 $ 810,580 $ 744,815 $555,814
Interest on Short-term borrowings 45,342 38,113 79,415 88,753 100,498 70,894 46,494
Interest on FHLB Advances & other
Long-term Debt 47,958 69,828 131,671 121,912 100,163 81,940 51,950
-------- -------- ---------- ---------- ---------- ---------- --------
Total Interest Expense &
Amortization of Debt Issuance Costs 512,600 550,379 1,107,148 1,064,586 1,011,241 897,649 654,258
-------- -------- ---------- ---------- ---------- ---------- --------
Capitalized Interest Expense 0 0 0 0 0 0 0
Portion of Operating Lease Rents
Representative of the Interest Factor 5,198 4,588 10,760 8,797 7,475 8,090 7,394
-------- -------- ---------- ---------- ---------- ---------- --------
TOTAL FIXED CHARGES $517,798 $554,967 $1,117,908 $1,073,383 $1,018,716 $ 905,739 $661,652
======== ======== ========== ========== ========== ========== ========
CONSOLIDATED RATIO OF
EARNINGS TO FIXED CHARGES 1.59x 1.52x 1.33x 1.48x 1.44x 1.52x 1.49x
======== ======== ========== ========== ========== ========== ========
</TABLE>
- -----------------------------------
Due to the number of acquisitions completed over the above time periods, certain
amounts were estimated due to the information not being available.
<PAGE> 2
UNION PLANTERS CORPORATION
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEARS ENDED DECEMBER 31,
------------------ ---------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-----------------------------------------------------------------------------
EXCLUDING INTEREST ON DEPOSITS (Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before Income Taxes, $306,989 $286,389 $ 371,922 $ 515,849 $ 445,757 $ 471,537 $324,440
Add:
Interest Expense & Amortization
of Debt Issuance Costs 93,300 107,941 211,086 210,665 200,661 152,834 98,444
Portion of Operating Lease Rents
Representative of the Interest Factor 5,198 4,588 10,760 8,797 7,475 8,090 7,394
-------- -------- ---------- ---------- ---------- ---------- --------
Earnings As Adjusted $405,487 $398,918 $ 593,768 $ 735,311 $ 653,893 $ 632,461 $430,278
======== ======== ========== ========== ========== ========== ========
FIXED CHARGES:
Interest on Short-term borrowings $ 45,342 $ 38,113 $ 79,415 $ 88,753 $ 100,498 $ 70,894 $ 46,494
Interest on FHLB Advances & other
Long-term Debt 47,958 69,828 131,671 121,912 100,163 81,940 51,950
-------- -------- ---------- ---------- ---------- ---------- --------
Total Interest Expense & Amortization
of Debt Issuance Costs 93,300 107,941 211,086 210,665 200,661 152,834 98,444
-------- -------- ---------- ---------- ---------- ---------- --------
Capitalized Interest Expense 0 0 0 0 0 0 0
Portion of Operating Lease Rents
Representative of the Interest Factor 5,198 4,588 10,760 8,797 7,475 8,090 7,394
-------- -------- ---------- ---------- ---------- ---------- --------
TOTAL FIXED CHARGES $ 98,498 $112,529 $ 221,846 $ 219,462 $ 208,136 $ 160,924 $105,838
======== ======== ========== ========== ========== ========== ========
CONSOLIDATED RATIO OF
EARNINGS TO FIXED CHARGES 4.12x 3.55x 2.68x 3.35x 3.14x 3.93x 4.07x
======== ======== ========== ========== ========== ========== ========
</TABLE>
- ---------------------------------------
Due to the number of acquisitions completed over the above time periods, certain
amounts were estimated due to the information not being available.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated January 21, 1999 (except
as to Note 2, which is dated as of March 5, 1999), relating to the financial
statements, which appears in the 1998 Annual Report to Shareholders of Union
Planters Corporation, which is incorporated by reference in Union Planters
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
- -------------------------------
Memphis, Tennessee
August 13, 1999
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
UNION PLANTERS CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
TENNESSEE
(STATE OR OTHER JURISDICTION OF 62-0859007
INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SENIOR DEBT SECURITIES ISSUED PURSUANT TO THE SENIOR INDENTURE
SUBORDINATED DEBT SECURITIES ISSUED PURSUANT TO THE SUBORDINATED INDENTURE
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; and The Board of Governors of
the Federal Reserve System, Washington D.C..
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and existing
under the laws of the United States of America, has duly caused
this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago
and State of Illinois, on the 10th day of August, 1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ SANDRA L. CARUBA
------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U
S WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 10, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the indenture between Union Planters
Corporation and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ SANDRA L. CARUBA
--------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 5
EXHIBIT 7
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding on the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C400
----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)................ 0081 3,809,517 1.a
b. Interest-bearing balances(2)......................................... 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 12,885,728 2.b
3. Federal funds sold and securities purchased under agreements to
resell.................................................................. 1350 4,684,756 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)................................................................... 2122 34,304,806 4.a
b. LESS: Allowance for loan and lease losses............................ 3123 411,476 4.b
c. LESS: Allocated transfer risk reserve................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)................................. 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D)..................................... 3545 5,100,499 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 754,052 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 5,244 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 201,068 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 265,041 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 285,709 10.
11. Other assets (from Schedule RC-F)....................................... 2160 2,987,184 11.
12. Total assets (sum of items 1 through 11)................................ 2170 68,940,410 12.
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</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
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SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ................................... 2200 22,163,664 13.a
(1) Noninterest-bearing(1) .................................... 6631 9,740,100 13.a1
(2) Interest-bearing........................................... 6636 12,423,564 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II)............................. 2200 19,273,426 13.b
(1) Noninterest bearing ....................................... 6631 334,741 13.b1
(2) Interest-bearing .......................................... 6636 18,938,685 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,405,792 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 173,505 15.a
b. Trading Liabilities(from Schedule RC-D)........................ RCFD 3548 4,824,567 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less..................... 2332 7,453,761 16.a
b. With original maturity of more than one year................... A547 330,300 16.b
c. With original maturity of more than three years................ A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .......... 2920 265,041 18.
19. Subordinated notes and debentures ................................ 3200 2,600,000 19.
20. Other liabilities (from Schedule RC-G) ........................... 2930 1,878,367 20.
21. Total liabilities (sum of items 13 through 20) ................... 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus .................... 3838 0 23.
24. Common stock ..................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ......... 3839 3,239,836 25.
26. a. Undivided profits and capital reserves ........................ 3632 1,813,367 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities .................................................... 8434 (37,357) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH FLOW HEDGES............. 4336 0 26.c
27. Cumulative foreign currency translation adjustments............... 3284 (2,454) 27.
28. Total equity capital (sum of items 23 through 27)................. 3210 5,214,250 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................. 3300 68,940,410 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external
auditors as of any date during 1996........................................ RCFD 6724 ...... [ N/A ] Number
M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4. = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
