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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
---------------
Date of Report (Date of earliest event reported) September 3, 1997
Commission File Number 1-6862
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of registrant)
Delaware 13-1898818
(State of organization) (I.R.S. Employer Identification Number)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices and zip code)
(212) 892-3000
(Registrant's telephone Number)
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Page 1 of 4
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ITEM 5. OTHER EVENTS
On September 3, 1997, Donaldson, Lufkin & Jenrette, Inc. (the
"Company") commenced a program for the offering of Medium-Term Notes due nine
months or more from the date of issuance ("MEDIUM-TERM NOTES") in the
aggregate principal amount of up to $500,000,000 or the equivalent thereof in
one or more other currencies or currency units such as the European Currency
Unit. The Medium-Term Notes are part of the $1,000,000,000 in debt securities
registered by the Company pursuant to a Registration Statement, as amended
(the "REGISTRATION STATEMENT") filed with the Securities and Exchange
Commission ("COMMISSION") on Form S-3 (Registration No. 333-34149) pursuant to
Rule 415 promulgated by the Commission under the Securities Act of 1933, as
amended (the "Act"). A Prospectus Supplement and Base Prospectus relating to
the Medium-Term Notes has been filed with the Commission pursuant to Rule
424(b) of the Act. The issuance and sale of the Medium-Term Notes may be made
from time to time in various amounts pursuant to an Indenture, dated as of
September 3, 1997, between the Company and The Chase Manhattan Bank as
Trustee. The Indenture is attached hereto as Exhibit 4.1 and incorporated by
reference herein. A form of the Indenture was previously filed with the
Commission.
The Medium-Term Notes will be distributed pursuant to a
Distribution Agreement among the Company and certain agents. The
Distribution Agreement is attached hereto as Exhibit 1 and incorporated by
reference herein. The Medium-Term Notes may bear fixed or floating rates of
interest and may also be issued as Indexed Notes, Dual Currency Notes,
Renewable Notes, Amortizing Notes or as Original Issue Discount Notes as
described in the Prospectus Supplement. A form of Fixed Rate Medium-Term Note
and Regular Floating Rate Medium-Term Note are attached hereto as Exhibits 4.2
and 4.3, respectively, and incorporated by reference herein. The Chase
Manhattan Bank (the "CALCULATION AGENT") may perform certain services in
connection with the issuance of Medium-Term Notes bearing floating rates of
interest or bearing fixed rates of interest determined by reference to an
interest rate formula, if any, pursuant to a Calculation Agent Agreement
between the Company and the Calculation Agent. The Calculation
Agent Agreement is attached hereto as Exhibit 4.4 and incorporated by
reference herein. Tax consequences of ownership and disposition of Notes are
described in the Prospectus Supplement. The opinion of Wilmer, Cutler &
Pickering, special tax counsel to the Company, is attached hereto as Exhibit
4.5 and incorporated by reference herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
c. Exhibits.
1 Distribution Agreement dated as of
September 3, 1997.
4.1 Indenture between the Company and The Chase
Manhattan Bank as Trustee.
4.2 Form of Fixed Rate Medium-Term Note.
4.3 Form of Floating Rate Medium-Term Note.
4.4 Calculation Agent Agreement between the Company
and The Chase Manhattan Bank as Calculation
Agent, dated as of September 3, 1997.
4.5 Tax Opinion of Wilmer, Cutter & Pickering.
Page 2 of 4
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ Marjorie S. White
-------------------------------
Name: Marjorie S. White
Title: Secretary
Dated: September 4, 1997
Page 3 of 4
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
- ------ -------
1 Distribution Agreement dated as of
September 3, 1997.
4.1 Indenture between the Company and The Chase
Manhattan Bank as Trustee.
4.2 Form of Fixed Rate Medium-Term Note.
4.3 Form of Floating Rate Medium-Term Note.
4.4 Calculation Agent Agreement between the Company
and The Chase Manhattan Bank as Calculation
Agent, dated as of September 3, 1997.
4.5 Tax Opinion of Wilmer, Cutter & Pickering.
Page 4 of 4
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DONALDSON, LUFKIN & JENRETTE, INC.
$500,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
September 3, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue New York
New York 10172
BANCAMERICA SECURITIES, INC.
40 East 52nd Street, 6th Floor
New York, New York 10022
BANQUE PARIBAS
787 7th Avenue
New York, New York 10019
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
CITICORP SECURITIES, INC.
399 Park Avenue, 7th Floor
New York, New York 10043
CREDIT LYONNAIS SECURITIES (USA) INC.
1301 6th Avenue, 17th Floor
New York, New York 10019
DEUTSCHE MORGAN GRENFELL INC.
31 West 52nd Street, 3rd Floor
New York, New York 10019
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FIRST CHICAGO CAPITAL MARKETS INC.
One First National Plaza
Mail Suite 0595
Chicago, Illinois 60670
NATIONSBANC CAPITAL MARKETS, INC.
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255
SOCIETE GENERALE SECURITIES CORPORATION
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
UBS SECURITIES LLC
299 Park Avenue, 26th Floor
New York, New York 10171
Ladies and Gentlemen:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the
"Company"), confirms its agreement with each of you (individually, an "Agent"
and collectively, the "Agents") with respect to the issue and sale from time
to time by the Company of its Medium-Term Notes due from nine months or more
from date of issue (the "Notes") at an aggregate initial offering price of up
to $500,000,000 (or the equivalent thereof in one or more foreign currencies
or currency units), as such amount shall be reduced by the aggregate initial
offering price of any other debt securities issued by the Company after the
date hereof, whether within or without the United States ("Other Securities")
pursuant to the registration statement referred to below to the extent that
the aggregate initial offering price of such other debt securities exceeds
$500,000,000, and agrees with each of you (individually, an "Agent," and
collectively, the "Agents," which term shall include any additional agents
appointed pursuant to Section 13 hereof) as set forth in this Agreement. The
Notes will be issued under an indenture dated as of September 3, 1997 (the
"Indenture") between the Company and The Chase Manhattan Bank as Trustee (the
"Trustee"). The Notes shall have the maturities, interest rates, redemption
provisions, if any, and other terms set forth in the Prospectus referred to
below as it may be amended or supplemented from time to time. The Notes will
be issued, and the terms and rights thereof established, from time to time by
the Company in accordance with the Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation
by the Company of the right (A) to sell Notes directly to investors (other
than broker-dealers) in those jurisdictions in which the
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Company is so permitted and (B) to accept (but not solicit) offers to purchase
Notes from time to time through one or more purchasers on substantially the
terms set forth in Exhibit C hereto, provided that the Company shall provide
the Agents with written notice of each such acceptance within two business
days thereof the Company hereby (i) appoints the Agents as the exclusive
agents of the Company for the purpose of soliciting and receiving offers to
purchase Notes from the Company by others pursuant to Section 2(a) hereof and
(ii) agrees that, except as otherwise contemplated herein, whenever it
determines to sell Notes directly to any Agent as principal, it will enter
into a separate agreement (each such agreement a "Terms Agreement"),
substantially in the form of Exhibit A hereto, relating to such sale in
accordance with Section 2(b) hereof. In connection with the Company's
reservation pursuant to clause (B) above, it is understood that the Company
may respond to inquiries and requests for information from any such
purchasers.
The Company has prepared and filed a registration statement on Form
S-3 (No. 333-34149) in respect of the Notes with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined) is hereinafter referred to as the
"Registration Statement" and the prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The Basic Prospectus as supplemented by the prospectus supplement
or supplements (each a "Prospectus Supplement") specifically relating to the
Notes in the form filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act is hereinafter referred to as
the "Prospectus." Any reference in this Agreement to the Registration
Statement, the Basic Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Notes (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
1. Representations. The Company represents and warrants to, and agrees
with, each Agent as of the Commencement Date, as of each date on which the
Company accepts an offer to purchase Notes (including any purchase by an Agent
as principal pursuant to a Terms Agreement), as of each date the Company issues
and sells Notes and as of each date the
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Registration Statement or the Basic Prospectus is amended or supplemented, as
follows (it being understood that such representations and warranties shall be
deemed to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has been declared
effective by the Commission under the Securities Act; no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration
Statement and Prospectus comply and, as amended or
supplemented, if applicable, will comply, in all material
respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust
Indenture Act"); each part of the Registration Statement
filed with the Commission pursuant to the Securities Act,
when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will
not contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
and the Prospectus did not, as of the date of the
Prospectus and any amendment or supplement thereto, contain
any untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented
at such date, if applicable, will not contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information
relating to any Agent furnished to the Company in writing
by such Agent expressly for use therein.
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of
the Exchange Act, and none of such documents, when they
were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such
documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act,
as applicable, and will not contain an untrue statement of
a material fact or omit to state a material fact
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necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(c) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change,
or any development known by the Company (after diligent
inquiry) involving a prospective material adverse change,
in or affecting the business, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise
than as set forth, incorporated by reference or
contemplated in the Prospectus; and except as set forth,
incorporated by reference or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company and
its subsidiaries taken as a whole.
(d) The Company and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") (collectively along with
any other significant subsidiaries identified by the
Company, which are all of the significant subsidiaries of
the Company, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation and has the corporate power and authority to
carry on business as it is currently being conducted and to
own, lease and operate its properties, all as described in
the Prospectus, and each is duly qualified and in good
standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock
of, or other ownership interests in, each of the
Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the
Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature.
(f) The Notes have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for
by the purchasers thereof in accordance with this Agreement
and any applicable Terms Agreement, will be entitled to the
benefits of the Indenture, and will be valid and binding
obligations of the Company, enforceable in accordance with
their terms and the terms of the Indenture except as (i)
the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the
availability of
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equitable remedies may be limited by equitable principles of
general applicability.
(g) This Agreement and any applicable Terms
Agreement each has been duly authorized, executed and
delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
(h) The Indenture has been duly qualified under the
Trust Indenture Act, and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with
its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(i) The Notes will conform to the description
thereof contained in the Prospectus as amended or
supplemented, if applicable, in connection with the
issuance of Notes.
(j) Neither the Company nor any of its Subsidiaries
is in violation of its respective certificate of
incorporation or bylaws or in default in the performance of
any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness
or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this
Agreement, the Notes, the Indenture and any applicable
Terms Agreement, and compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or
other governmental body (except as such may be required
under the Securities Act or state securities or Blue Sky
laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
certificate of incorporation or by-laws of the Company or
any of its Subsidiaries or any agreement, indenture or
other instrument to which it or any of its Subsidiaries is
a party or by which it or any of its Subsidiaries or their
property is bound, or violate or conflict with any laws,
administrative regulations
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or rulings or court decrees applicable to the Company, any of
its Subsidiaries or their respective properties.
(l) Except as otherwise set forth or incorporated
by reference in the Prospectus, there are no material legal
or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described, filed or
incorporated by reference as required.
(m) Neither the Company nor any of its Subsidiaries
has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
nor any federal or state law relating to discrimination in
the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, which
in each case might result in any material adverse change in
the business, prospects, financial condition or results of
operation of the Company and its Subsidiaries, taken as a
whole.
(n) The Company and each of its Subsidiaries has
such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has
fulfilled and performed all of its material obligations
with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company
and its Subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the
Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints
on operating activities and any potential
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liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(p) Except as otherwise set forth or incorporated
by reference in the Prospectus or such as are not material
to the business, prospects, financial condition or results
of operation of the Company and its Subsidiaries, taken as
a whole, the Company and each of its Subsidiaries has good
and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not
yet due and payable, to all property and assets described
in the Registration Statement as being owned by it. All
leases to which the Company or any of its Subsidiaries is a
party are valid and binding and no default has occurred or
is continuing thereunder, which might result in any
material adverse change in the business, prospects,
financial condition or results of operation of the Company
and its Subsidiaries, taken as a whole, and the Company and
its Subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere
with the use made by the Company or such Subsidiary.
(q) The Company and each of its Subsidiaries
maintains reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the
Securities Act.
(s) The financial statements, together with related
schedules and notes forming part of or incorporated by
reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations
and changes in financial position of the Company and its
subsidiaries on the basis stated or incorporated by
reference in the Registration Statement at the respective
dates or for the respective periods to which they apply;
such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
involved, except as disclosed therein; and the other
financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto)
is, in all material respects, accurately presented and
prepared on a basis consistent with such financial
statements and the books and records of the Company and its
subsidiaries.
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(t) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended.
(u) Except as described in the Prospectus, no
holder of any security of the Company has any right to
require registration of shares of common stock or any other
security of the Company.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(w) The Company and each of its Subsidiaries
maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(x) All material tax returns required to be filed
by the Company and each of its subsidiaries in any
jurisdiction have been filed, other than those filings
being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which
adequate reserves have been provided.
2. Solicitations by Agents of Offers to Purchase; Purchases by Agent
as Principal.
(a) On the basis of the representations and
warranties herein contained, but subject to the terms and
conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company,
to use its reasonable efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions
set forth herein and in the Prospectus as amended or
supplemented from time to time, and in connection therewith
will use the Prospectus as then amended or supplemented
which has been most recently distributed to you by the
Company, only as permitted or contemplated thereby, and
will solicit purchases of the Notes only as permitted by
the Securities Act and the applicable securities laws or
regulations of any jurisdiction (including without
limitation any applicable state securities and Blue Sky
laws).
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So long as this Agreement shall remain in effect
with respect to any Agent, and subject to the reservations
set forth in clauses (A) and (B) of the second paragraph of
this Agreement, the Company shall not, without the consent
of such Agent, solicit or accept offers to purchase, or
sell, Notes or any other debt securities with a maturity at
the time of original issuance of nine months or more except
pursuant to this Agreement and any Terms Agreement, or
except pursuant to a private placement not constituting a
public offering under the Securities Act or except in
connection with a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time,
for any period of time or permanently, the solicitation of
offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, each Agent
will suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised such
Agent or Agents that such solicitation may be resumed.
During the period of time that such solicitation is
suspended, the Company shall not be required to deliver any
opinions, letters or certificates in accordance with
Sections 4(i), 4(j) and 4(k); provided that if the
Registration Statement or Prospectus is amended or
supplemented during the period of suspension (other than by
an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization
schedules or maturities offered for the Notes or for a
change that the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase
Notes until the Company has delivered such opinions,
letters and certificates as such Agent may reasonably
request.
Unless otherwise provided for in the applicable
Pricing Supplement, the Company agrees to pay each Agent,
as consideration for the sale of each Note resulting from a
solicitation made or an offer to purchase received by such
Agent, a commission in the form of a discount from the
purchase price of such Note in an amount not to exceed the
following applicable percentage of the principal amount of
such Note sold:
Commission (percentage of aggregate
Maturities of Notes Sold principal amount)
- ------------------------ -----------------------------------
From 9 months to less than 1 year............................ .125%
From 1 year to less than 18 months........................... .150%
From 18 months to less than 2 years.......................... .200%
From 2 years to less than 3 years............................ .250%
From 3 years to less than 4 years............................ .350%
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From 4 years to less than 5 years............................ .450%
From 5 years to less than 6 years............................ .500%
From 6 years to less than 7 years............................ .550%
From 7 years to less than 10 years........................... .625%
From 10 years to less than 12 years.......................... .650%
From 12 years to less than 15 years.......................... .675%
From 15 years to less than 20 years.......................... .750%
From 20 years to and including 30 years...................... .875%
The Agents are authorized to solicit offers to
purchase Notes only in the principal amount of $1,000 (or,
if Notes are denominated in currencies, currency units or
composite currencies other than U.S. dollars, such other
minimum denomination specified in the applicable Pricing
Supplement) or any amount in excess thereof which is an
integral multiple of $1,000 (or, if Notes are denominated
in currencies or currency units other than U.S. dollars,
integrals in excess of the minimum denomination specified
in the applicable Pricing Supplement). Each Agent shall
communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent
that in its judgment should be considered by the Company.
The Company shall have the sole right to accept offers to
purchase the Notes and may reject any such offer in whole
or in part. Each Agent shall have the right, in its sole
discretion, to reject any offer to purchase Notes, as a
whole or in part, that it reasonably considers to be
unacceptable and any such rejection shall not be deemed a
breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Notes sold to
a purchaser solicited by an Agent as agent and the payment
therefor are set forth in the Administrative Procedures (as
hereinafter defined).
(b) Each sale of Notes by the Company directly to
any of you as principal for resale to others shall be made
in accordance with the terms of this Agreement and (unless
any such Agent shall otherwise agree) a Terms Agreement
which will provide for the sale and purchase of such Notes.
For the purposes of this Agreement, the terms "Agent" and
"Agents" shall refer to you acting solely in the capacity
as agent for the Company hereunder and not as principal,
the term "Purchaser" shall refer to you acting solely as
principal hereunder and not as agent, and the term "you"
shall refer to each of you acting in both such capacities
or in either such capacity; provided, however, that no
Additional Agent may act as principal hereunder. Each Terms
Agreement will take the form of either (i) a written
agreement substantially in the form of Exhibit A hereto or
(ii) an exchange of any standard form of written
telecommunication between a Purchaser and the Company, and
may also specify certain provisions relating to the
reoffering of such Notes by such Purchaser. The commitment
of any Purchaser to purchase Notes shall be deemed to have
been made on the basis of
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the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions
herein and in the applicable Terms Agreement set forth.
Each Terms Agreement shall specify the principal amount of
Notes to be purchased by such Purchaser pursuant thereto,
the price to be paid to the Company for such Notes, the
maturity date of such Notes, the interest rate or interest
rate basis, if any, applicable to such Notes, any other
terms of such Notes, the time and date and place of
delivery of and payment for such Notes (the time and date
of any and each such delivery and payment, the "Time of
Delivery"), any provisions relating to rights of, and
defaults by, underwriters acting together with such
Purchaser in the reoffering of Notes, and shall also
specify any modification of the requirements for opinions
of counsel, accountants' letters and officers' certificates
pursuant to Section 4 hereof. Unless otherwise specified in
a Terms Agreement, the procedural details relating to the
issue and delivery of Notes purchased by a Purchaser and
the payment therefor shall be as set forth in the
Administrative Procedures.
(c) The Company acknowledges that the obligations
of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have
complete discretion as to the manner in which it solicits
purchasers for the Notes and as to the identity thereof.
(d) The Agents and the Company agree to perform
their respective duties and obligations specifically
provided to be performed in the Medium-Term Notes
Administrative Procedures (the "Administrative Procedures")
attached hereto as Exhibit B, as the same may be amended
from time to time. The Administrative Procedures may be
amended only by written agreement of the Company and the
Agents.
(e) The Company agrees to notify each Agent of
sales by the Company of Other Securities and the aggregate
initial offering price of such Other Securities.
(f) Each of the Agents hereby severally and not
jointly agrees, as agent of the Company, directly or
indirectly, with respect to any Note denominated in a
currency other than U.S. dollars, not to solicit offers to
purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or
deliver, such Note in or to residents of the country
issuing such currency (or, if such Note is denominated in a
composite currency, in any country issuing a currency
comprising a portion of such composite currency) except as
permitted by applicable law.
3. Commencement Date. The documents required to be delivered pursuant
to Section 6 hereof on the Commencement Date shall be delivered to the Agents
at the offices of Donaldson, Lufkin & Jenrette Securities Corporation, 277
Park Avenue, New York, New York 10172, at
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11:00 a.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Notes is commenced or the first date on
which the Company accepts an offer by any Agent to purchase Notes as principal
(such time and date being referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees with
each Agent:
(a) (i) To make no amendment or supplement to the
Registration Statement or the Prospectus prior to the
termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement which shall be disapproved
by any Agent after reasonable opportunity to comment
thereon, provided, however, that the foregoing shall not
apply to any of the Company's periodic filings with the
Commission described in subsection (iii) below, copies of
which filings the Company will cause to be delivered to the
Agents promptly after their transmission to the Commission
for filing; (ii) subject to the foregoing clause (i),
promptly to cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Notes to be sold through or to
such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by
such Agent and to file such Pricing Supplement in
accordance with Rule 424(b) under the Securities Act; and
(iii) promptly to file all reports and any definitive proxy
or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a Prospectus is required in connection with the
offering or sale of the Notes. The Company will promptly
advise each Agent (x) of the filing of any amendment or
supplement to the Basic Prospectus or any amendment to the
Registration Statement and of the effectiveness of any such
amendment to the Registration Statement; (y) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order
preventing or suspending the use of any Prospectus relating
to the Notes or the initiation or threatening of any
proceeding for that purpose, or of any request by the
Commission for any amendment or supplement of the
Registration Statement or Prospectus or for additional
information; and (z) of the receipt by the Company of any
notification with respect to any suspension of the
qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose. The Company agrees to use
its best efforts to prevent the issuance of any such stop
order or of any such order preventing or suspending the use
of any such prospectus or of any notification suspending
any such qualification and, if issued, to use promptly its
best efforts to obtain withdrawal thereof as soon as
possible. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange
Act of any document incorporated by reference in the
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<PAGE>
Prospectus, no Agent shall be obligated to solicit
offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) To endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as the Agents shall reasonably request and to
continue such qualification in effect so long as reasonably
required in connection with the distribution of the Notes
and to pay all fees and expenses (including fees and
disbursements of counsel to the Agents) reasonably incurred
in connection with such qualification and in connection
with the determination of the eligibility of the Notes for
investment under the laws of such jurisdictions as such
Agent may designate; provided that the Company shall not be
required to file a general consent to service of process in
any jurisdiction or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified.
(c) To furnish each Agent and counsel to the
Agents, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the
period mentioned in paragraph (d) below, to furnish each
Agent as many copies of the Prospectus (including all
amendments and supplements thereto) and documents
incorporated by reference therein as such Agent may
reasonably request.
(d) If at any time when a Prospectus relating to
the Notes is required to be delivered under the Securities
Act, any event shall occur as a result of which the
Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances when such
Prospectus is delivered to a purchaser, not misleading, or,
if in the opinion of the Agents or the Company, it is
necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by
telephone (with confirmation in writing) and request each
Agent (i) in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Notes from the
Company; and (ii) to cease sales of any Notes such Agent
may then own as principal (and, if so notified in either
case, such Agent shall immediately cease such solicitations
or sales and cease using the Prospectus as soon as
practicable, but in any event not later than one business
day later). If the Company shall decide to amend or
supplement the Registration Statement or the Prospectus, as
then amended or supplemented, it shall so advise each Agent
promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed
promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus, as then
amended or supplemented, that will correct such statement
or omission or effect such compliance and will supply such
amended or supplemented Prospectus to the Agents in such
quantities as they
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<PAGE>
may reasonably request. If any such amendment or supplement
and any documents, opinions, letters and certificates
furnished to the Agents pursuant to Sections 4(e), 4(i),
4(j) and 4(k) in connection with the preparation and filing
of such amendment or supplement are satisfactory in all
respects to the Agents, upon the filing with the Commission
of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration
Statement, the Agents will resume the solicitation of
offers to purchase Notes hereunder. Notwithstanding any
other provision of this Section 4(d), until the
distribution of any Notes any Agent may own as principal
has been completed or in the event such Agent, in the
opinion of its counsel, is otherwise required to deliver a
Prospectus in respect of a transaction in the Notes, if any
event described in this Section 4(d) occurs the Company
will, at its own expense, promptly prepare and file with
the Commission an amendment or supplement, satisfactory in
all respects to such Agent, that will correct such
statement or omission or effect such compliance, will
supply such amended or supplemented Prospectus to such
Agent in such quantities as such Agent may reasonably
request and shall furnish to such Agent pursuant to
Sections 4(e), 4(i), 4(j) and 4(k) such documents,
certificates, opinions and letters as it may request in
connection with the preparation and filing of such
amendment or supplement.
(e) To furnish to the Agents during the term of
this Agreement such relevant documents and certificates of
officers of the Company relating to the business,
operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Notes, this
Agreement, the Administrative Procedures, any applicable
Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from
time to time reasonably request and shall notify the Agents
promptly in writing of any downgrading, or on its receipt
of any notice of (i) any intended or potential downgrading
or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any of
securities of, or guaranteed by, the Company by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
(f) To make generally available to its security
holders and to such Agent as soon as practicable earnings
statements which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter
of the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement with
respect to each sale of Notes.
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<PAGE>
(g) So long as any Notes are outstanding, to
furnish to such Agent copies of all reports or other
communications (financial or other) furnished to holders of
Notes and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the
Company is listed.
(h) That, from the date of any applicable Terms
Agreement with such Agent or other agreement by such Agent
to purchase Notes as principal and continuing to and
including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Notes,
without the prior written consent of such Agent.
(i) That each time that (i) the Registration
Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement providing solely
for the specification of or a change in the interest rates,
redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem to be
immaterial), the Company shall furnish or cause to be
furnished forthwith to the Agents the written opinion of
Michael A. Boyd, the General Counsel of the Company, or
other counsel for the Company satisfactory to the Agents,
dated the date of such amendment or supplement, in form
satisfactory to the Agents, of the same tenor as the
opinion referred to in Section 6(b) hereof but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of such opinion; or,
in lieu of such opinion, counsel last furnishing such an
opinion, may furnish to the Agents a letter to the effect
that such Agents may rely on the opinion of such counsel
which was last furnished to such Agents to the same extent
as though it were dated the date of such letter (except
that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended or supplemented to date of delivery of such
letter).
(j) That each time that the Registration Statement
or the Prospectus is amended or supplemented to set forth
amended or supplemental financial information or such
amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus,
the Company shall cause its independent public accountants,
forthwith to furnish each Agent a letter, dated the date of
the effectiveness of such amendment or the date of filing
of such supplement, in form satisfactory to such Agent, of
the same tenor as the letter referred to in Section 6(d)
with such changes as may be necessary to reflect the
amended and supplemental financial information included or
incorporated by reference in the Registration Statement and
the Prospectus, as amended or supplemented to the date of
such letter; provided that if the Registration Statement or
the Prospectus is amended or supplemented solely to include
or
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<PAGE>
incorporate by reference financial information as of and
for a fiscal quarter, such independent public accountants
may limit the scope of such letter, which shall be
satisfactory in form to each Agent, to the unaudited
financial statements and the related "Management's
Discussion and Analysis of Financial Condition and Results
of Operations" included in such amendment or supplement,
unless any other information included or incorporated by
reference therein of an accounting, financial or
statistical nature is of such a nature that, in the
reasonable judgment of any Agent, such letter should cover
such other information; provided further that, if during
the period from the date hereof to and including December
31, 1997, no purchase of Notes by a Purchaser pursuant to a
Terms Agreement shall have taken place, then the obligation
of the Company's certified public accountants to furnish
such letters pursuant to this paragraph (j) shall be
suspended. Thereafter, upon the purchase of any Notes by a
Purchaser pursuant to a Terms Agreement, the Company's
certified public accountants shall furnish such letter as
would most recently have been issued pursuant to this
paragraph (j) if no suspension had occurred, and such
accountants' obligations under this paragraph (j) shall
resume.
(k) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by an amendment or supplement providing solely for a change
in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), the Company shall
furnish or cause to be furnished forthwith to the Agents a
certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement in form
satisfactory to the Agents, of the same tenor as the
certificates referred to in Section 6(e) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of delivery of such
certificate or to the effect that the statements contained
in the certificate referred to in Section 6(e) hereof which
was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except
that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended or
supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Notes is consummated,
pay all costs and expenses incident to the performance of its obligations
hereunder and under any applicable Terms Agreement, including without limiting
the generality of the foregoing, all costs and expenses: (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of
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<PAGE>
the Notes under the laws of such jurisdictions as the Agents (or in connection
with any Terms Agreement, the applicable Agent) may designate (including fees
of counsel for the Agents (or such Agent) and their disbursements), (iv) in
connection with the listing of the Notes on any stock exchange, (v) related to
any filing with National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, any Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Agents and dealers of copies
of the Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (vii) payable to rating agencies in connection
with the rating of the Notes, (viii) the fees and disbursements of counsel for
the Agents incurred in connection with the offering and sale of the Notes,
including any opinions to be rendered by such counsel hereunder and (ix) any
advertising and out-of-pocket expenses incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the Notes, the
obligation of any Purchaser to purchase Notes pursuant to any Terms Agreement,
and the obligation of any other purchaser to purchase Notes shall in each case
be subject (1) to the condition that all representations and warranties of the
Company herein and all statements of officers of the Company made in any
certificate furnished pursuant to the provisions hereof are true and correct
(i) in the case of an Agent's obligation to solicit offers to purchase Notes,
at and as of such Solicitation Time and (ii) in the case of any Purchaser's or
any other purchaser's obligation to purchase Notes, at and as of the time the
Company accepts the offer to purchase such Notes and, as the case may be, at
and as of the related Time of Delivery or time of purchase; (2) to the
condition that at or prior to such Solicitation Time, time of acceptance, Time
of Delivery or time of purchase, as the case may be, the Company shall have
complied with all its agreements and all conditions on its part to be
performed or satisfied hereunder; and (3) to the following additional
conditions when and as specified (it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
discretionary judgment on behalf of the Company or any purchaser in respect of
the fulfillment of any such condition):
(a) Prior to such Solicitation Time or
corresponding Time of Delivery or time of purchase, as the
case may be:
(i) the Prospectus as amended or
supplemented (including, if applicable, the Pricing
Supplement) with respect to such Notes shall have
been filed with the Commission pursuant to Rule
424(b) under the Securities Act within the
applicable time period prescribed for such filing
by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of
the Registration Statement shall have been issued
and no proceedings for that purpose shall have been
commenced or shall be pending before or
contemplated by the Commission;
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<PAGE>
(ii) there shall not have been any
downgrading, nor shall any notice have been given
of any intended or potential downgrading or any
review or possible change that does not indicate
the direction of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating
organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act
subsequent to the date hereof;
(iii) there shall not have been any
change, or any development involving a prospective
adverse change, in the capital stock or in the
long-term debt of the Company or any of its
Subsidiaries from that set forth or incorporated by
reference in the Registration Statement and
Prospectus which would, in the opinion of the
applicable Agents, materially impair the investment
quality of the Notes;
(iv) the Company and its Subsidiaries
shall have no liability or obligation, direct or
contingent, which is material to the Company and
its Subsidiaries, taken as a whole, other than
those reflected or incorporated by reference in the
Registration Statement and the Prospectus;
(v) there shall not have been any adverse
change or development involving a prospective
adverse change, in the condition, financial or
otherwise, of the Company or any of its
Subsidiaries or the earnings, affairs, or business
prospects of the Company or any of its
Subsidiaries, whether or not arising in the
ordinary course of business, which would, in the
opinion of the applicable Agent, materially impair
the investment quality of the Notes; and
(vi) there shall not have been (A) any
outbreak or escalation of hostilities or other
national or international calamity or crisis or
change in economic conditions or in the financial
markets of the United States or elsewhere that, in
the judgment of the applicable Agent, is material
and adverse and would, in the judgment of the
applicable Agent, make it impracticable to market
the Notes on the terms and in the manner
contemplated in the Prospectus, (B) the suspension
or material limitation of trading in securities on
the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market System or
limitation on prices for securities on any such
exchange or National Market System, (C) the
enactment, publication, decree or other
promulgation of any federal or state statute,
regulation, rule or order of any court or other
governmental authority which in the opinion of the
applicable Agent materially and adversely affects,
or will materially and adversely affect, the
business or operations of the Company or any
Subsidiary, (D) the
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<PAGE>
declaration of a banking moratorium by either
federal or New York State authorities or (E) the
taking of any action by any federal, state or local
government or agency in respect of its monetary or
fiscal affairs which in the opinion of the
applicable Agent has a material adverse effect on
the financial markets in the United States.
(b) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, Michael A. Boyd, General Counsel of the
Company, or such other counsel acceptable to the Agents,
shall have furnished to the Agents or the Purchaser, as the
case may be, his written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agents or such Purchaser, as
the case may be, to the effect that:
(i) the Company has been duly
incorporated, is validly existing as a corporation
in good standing under the laws of the State of
Delaware and has the corporate power and authority
required to carry on its business as it is
currently being conducted and to own, lease and
operate its properties;
(ii) each of the Subsidiaries has been
duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate
power and authority required to carry on its
business as it is currently being conducted and to
own, lease and operate its properties;
(iii) the Company and each of its
Subsidiaries is duly qualified and is in good
standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature
of its business or its ownership or leasing of
property requires such qualification, except where
the failure to be so qualified would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole;
(iv) all of the outstanding shares of
capital stock of, or other ownership interests in,
each of the Subsidiaries have been duly and validly
authorized and issued, are fully paid and
non-assessable and are owned by the Company, free
and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(v) the Notes have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof in
accordance with the terms of this Agreement and any
applicable Terms Agreement, will be
20
<PAGE>
entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company,
enforceable against the Company in accordance with
their terms and the terms of the Indenture except
(a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights and
remedies generally and (b) as such enforcement may
be limited by general principles of equity,
regardless of whether enforcement is sought in a
proceeding at law or in equity;
(vi) this Agreement and any applicable
Terms Agreement each has been duly authorized,
executed and delivered by the Company and is a
valid and binding agreement of the Company, except
as rights to indemnity and contribution thereunder
may be limited by applicable law;
(vii) the Indenture has been duly
qualified under the Trust Indenture Act and has
been duly authorized, executed and delivered by the
Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) is a
valid and binding agreement of the Company,
enforceable in accordance with its terms except (a)
as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies
generally and (b) as such enforcement may be
limited by general principles of equity, regardless
of whether enforcement is sought in a proceeding at
law or in equity;
(viii) the Registration Statement has
become effective under the Securities Act, no stop
order suspending its effectiveness has been issued
and no proceedings for that purpose are, to the
knowledge of such counsel, pending before or
contemplated by the Commission;
(ix) to the best of such counsel's
knowledge, the Company is not in violation of its
certificate of incorporation or by-laws, except for
such violations that would not have a material
adverse effect on the Company and its Subsidiaries,
taken as a whole;
(x) to the best of such counsel's
knowledge, none of the Subsidiaries is in violation
of its respective certificate of incorporation or
by-laws, except for such violations that would not
have a material adverse effect on the Company and
its Subsidiaries, taken as a whole, and neither the
Company nor any of its Subsidiaries is in default
in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or
any other agreement, indenture or instrument
material to the condition of the business of the
Company and its Subsidiaries, taken as a
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<PAGE>
whole, to which the Company or any of its
Subsidiaries is a party or by which the Company or
any of its Subsidiaries or any of their respective
properties are bound;
(xi) the execution, delivery and
performance by the Company of this Agreement, the
Notes, the Indenture and any applicable Terms
Agreement and compliance by the Company with all the
provisions hereof and thereof will not, to the best
of such counsel's knowledge based solely upon due
inquiry of responsible officers of the Company, (A)
require any consent, approval, authorization or
other order of any court, regulatory body,
administrative agency or other governmental body
(except such as may be required under the Securities
Act, the Trust Indenture Act or state securities or
Blue Sky laws or by the National Association of
Securities Dealers, Inc.), except where the failure
to obtain such consents, approvals, authorizations
or other orders would not have a material adverse
effect on the Company and its Subsidiaries, taken as
a whole; (B) conflict with or constitute a breach of
any of the terms or provisions of the certificate of
incorporation or by-laws of the Company or any of
its Subsidiaries; (C) violate or conflict with any
laws, administrative regulations or, to the best of
such counsel's knowledge, rulings or court decrees
applicable to the Company or any of its Subsidiaries
or their respective properties except for such
violations or conflicts that would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole; or (D) to the best
of such counsel's knowledge, conflict with or
constitute a breach of any of the terms or
provisions of, or a default under, any agreement,
indenture or other instrument material to the
condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company
or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries or any of
their respective properties are bound;
(xii) to the best of such counsel's
knowledge, the Company and each of its Subsidiaries
has such permits, licenses, franchises and
authorizations (collectively, "permits") of and
from, and has made such declarations and filings
with, governmental or regulatory authorities,
including without limitation, state regulatory
organization, as are necessary to own, lease and
operate its respective properties and to conduct
its business in the manner described or
incorporated by reference in the Prospectus, except
where the failure to obtain such permits or make
such declarations and filings would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole; to the best of such
counsel's knowledge, the Company and each of its
Subsidiaries has fulfilled and performed all of its
obligations with respect to such permits, except
where failure to do so would not have a material
adverse effect on
22
<PAGE>
the Company and its Subsidiaries, taken as a whole,
and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or
termination thereof or results in any other
impairment of the rights of the holder of any such
permit, except where such revocation, termination or
impairment would not have a material adverse effect
on the Company and its Subsidiaries, taken as a
whole, subject, in each case, to such qualifications
as may be set forth or incorporated by reference in
the Prospectus; and, to the best of such counsel's
knowledge, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the
Company or any of its Subsidiaries;
(xiii) to the best of such counsel's
knowledge, all leases to which the Company or any
of its Subsidiaries is a party are valid and
binding and no default has occurred or is
continuing thereunder which might result in any
material adverse change in the business, prospects,
financial condition or results of operation of the
Company and its Subsidiaries, taken as a whole, and
the Company and its Subsidiaries enjoy peaceful and
undisturbed possession under all such leases to
which any of them is a party as lessee with such
exceptions as do not materially interfere with the
use made by the Company or such Subsidiary;
(xiv) the statements (A) in the Prospectus
under the captions "Description of Notes,"
"Description of Debt Securities" and "Plan of
Distribution," (B) incorporated by reference in the
Prospectus from Item 3 of Part I of the Company's
most recent Annual Report on Form 10-K, if any, for
the most recently completed fiscal year of the
Company, (C) incorporated by reference in the
Prospectus from Item 1 of Part II of the Company's
Quarterly Reports on Form 10-Q, if any, filed since
such Annual Report, (D) incorporated by reference
in the Prospectus from Item 5 of the Company's
Current Reports on Form 8-K, if any, filed since
such Annual Report and (E) in the Registration
Statement in Item 15 of Part II, insofar as such
statements constitute a summary of legal matters,
documents or proceedings referred to therein,
fairly present the information called for with
respect to such legal matters, documents and
proceedings;
(xv) to the best of such counsel's
knowledge, based solely upon due inquiry of
responsible officers of the Company, there is no
legal or governmental proceeding pending or
threatened to which the Company or any of its
subsidiaries is a party or to which any of their
respective property is subject which is required to
be described or incorporated by reference in the
Registration Statement or the Prospectus and is not
so
23
<PAGE>
described or incorporated by reference, or of any
contract or other document which is required to be
described or incorporated by reference in the
Registration Statement or the Prospectus or is
required to be filed as an exhibit to the
Registration Statement which is not described or
filed or incorporated by reference as required;
(xvi) the Company is not an "investment
company" within the meaning of the Investment
Company Act of 1940, as amended;
(xvii) to the best of such counsel's
knowledge, after due inquiry of responsible
officers of the Company, no holder of any security
of the Company has any right to require
registration of shares of common stock or any other
security of the Company except as disclosed or
incorporated by reference in the Prospectus;
(xviii) each document incorporated by
reference in the Registration Statement and the
Prospectus (except for the financial statements
included therein as to which such counsel need
express no opinion) complied as to form when filed
with the Commission in all material respects with
the Exchange Act; and
(xix) (1) the Registration Statement and
the Prospectus and any supplement or amendment
thereto (except for financial statements, schedules
and other financial data, as to which no opinion
need be expressed) comply as to form in all
material respects with the Securities Act, and (2)
nothing has come to such counsel's attention that
would lead such counsel to believe that (except for
financial statements, schedules and other financial
data, as aforesaid and except for the part of the
Registration Statement that constitutes the Form
T-1) the Registration Statement and the prospectus
included therein at the time the Registration
Statement became effective contained any 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, if applicable (except for financial
statements, schedules and other financial data, as
aforesaid) contained any untrue statement of a
material fact or omitted 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. In giving such opinion
with respect to the matters covered by clause (xix)
such counsel may state that his opinion and belief
are based upon his participation in the preparation
of the Registration Statement and Prospectus and
any amendments or supplements thereto and review
and discussion of the contents thereof, but are
without independent check or verification except as
specified.
24
<PAGE>
(c) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, Wilmer, Cutler & Pickering, counsel to
the Agents, shall have furnished to the Agents or such
Purchaser, as the case may be, their opinion, dated the
Commencement Date or Time of Delivery, as the case may be,
in form and substance satisfactory to such Agents or such
Purchaser, as the case may be, as to the matters referred
to in clauses (v), (vi), (vii), (viii), (xiv) (but only
with respect to the statements under the caption
"Description of Notes," "Description of Debt Securities"
and "Plan of Distribution") and (xix) of the foregoing
paragraph (b). In giving such opinion with respect to the
matters covered by clause (xix) such counsel may state that
their opinion and belief are based upon their participation
in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are
without independent check or verification except as
specified.
(d) On the Commencement Date, the Company's
independent certified public accountants who have certified
the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus, as then amended or
supplemented, shall have furnished to the Agents a letter,
dated within 5 business days of the Commencement Date, in
form and substance satisfactory to the Agents, containing
statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information relating to the Company contained in or
incorporated by reference in the Registration Statement and
the Prospectus, as then amended or supplemented.
(e) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, the Agents or such Purchaser, as the case
may be, shall have received a certificate or certificates
signed by an executive officer of the Company, dated the
Commencement Date or Time of Delivery, as the case may be,
to the effect set forth in Section 6(a)(i), (ii), (iii),
(iv) and (v) above and to the further effect that (1) the
representations and warranties of the Company contained
herein are true and correct on and as of the Commencement
Date or Time of Delivery, as the case may be, as if made on
and as of such date and (2) the Company has complied with
all agreements and all conditions on its part to be
performed or satisfied hereunder or under the applicable
Terms Agreement or other agreement at or prior to the
Commencement Date or Time of Delivery, as the case may be.
25
<PAGE>
(f) On the Commencement Date, Wilmer, Cutler &
Pickering, special tax counsel to the Company, shall have
furnished an opinion dated the Commencement Date confirming
that the information set forth in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations" is accurate in all material respects.
(g) On the Commencement Date and at each Time of
Delivery, the Company shall have furnished to the Agents or
the Purchaser, as the case may be, such further
certificates, information and documents as such Agents or
such Purchaser, as the case may be, may reasonably request.
7. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls
any Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities
and judgments caused by or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus
(as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by or arising out of any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are
caused by or arising out of any such untrue statement or
omission or alleged untrue statement or omission based upon
information relating to any Agents furnished in writing to
the Company by or on behalf of any Agent expressly for use
therein.
(b) In case any action shall be brought against any
Agent or any person controlling such Agent, based upon any
preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the
Company, such Agent shall promptly notify the Company in
writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory
to such indemnified party and payment of all fees and
expenses. Any Agent or any such controlling person shall
have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of
such Agent or such controlling person unless (i) the
employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company
shall have failed to assume the defense and employ counsel
or (iii) the named parties to any such action (including
any impleaded parties) include both such Agent or such
controlling person and the Company and such Agent or such
controlling person shall have
26
<PAGE>
been advised by such counsel that there maybe one or more
legal defenses available to it which are different from
or additional to those available to the Company (in which
case the Company shall not have the right to assume the
defense of such action on behalf of such Agent or such
controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local
counsel) for all such Agents and controlling persons, which
firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation, subject to approval by a
majority of such Agents, and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected
without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and
hold harmless any Agent and any such controlling person from
and against any loss or liability by reason of such
settlement. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of
counsel are at the expense of the indemnifying party and an
indemnified party shall have requested the indemnifying party
to reimburse the indemnified party for such fees and expenses
of counsel as incurred, such indemnifying party agrees that
it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered
into more than ten business days after the receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(c) Each Agent agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and any
person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Agent but only with reference to
information relating to such Agent furnished in writing by
or on behalf of such Agent expressly for use in the
Registration Statement, the Prospectus or
27
<PAGE>
any preliminary prospectus. In case any action shall be
brought against the Company, any of its directors, any such
officer or any person controlling the Company based on the
Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity maybe sought
against any Agent, such Agent shall have the rights and
duties given to the Company (except that if the Company shall
have assumed the defense thereof, such Agent shall not be
required to do so, but may employ separate counsel therein
and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
Agent), and the Company, its directors, any such officers and
any person controlling the Company shall have the rights and
duties given to the Agent, by Section 7(b) hereof.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and
judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on
the one hand and the Agents on the other hand from the
offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Agents in
connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments,
as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Agents
shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Notes (before
deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the
Agents from the offering of the Notes, bear to the total
price to the public of the Notes. The relative fault of the
Company and the Agents shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a
material fact relates to information supplied by the
Company or the Agents and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and each Agent agree that it would not
be just and equitable if contribution pursuant to this
Section 7(d) were determined by prorata allocation (even if
the Agents 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 in the
immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
such action or claim.
28
<PAGE>
Notwithstanding the provisions of this Section 7, no Agent
shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased
by or sold through such Agent and distributed to the public
exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Agents' obligations
to contribute pursuant to this Section 7(d) are several in
proportion to the respective principal amount of Notes
purchased by or through each of the Agents hereunder and not
joint.
8. Termination.
(a) This Agreement may be terminated at any time
(i) by the Company with respect to any or all of the Agents
or (ii) by any Agent with respect to itself only, in each
case upon the giving of written notice of such termination
to each other party hereto. Any Terms Agreement shall be
subject to termination in the absolute discretion of the
Agent or Agents that are parties thereto on the terms set
forth or incorporated by reference therein. The termination
of this Agreement shall not require termination of any
agreement by an Agent to purchase Notes as principal
(whether pursuant to a Terms Agreement or otherwise) and
the termination of such an agreement shall not require
termination of this Agreement. In the event this Agreement
is terminated with respect to any Agent, (x) this Agreement
shall remain in full force and effect with respect to any
Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which
have previously accrued or which relate to Notes which are
already issued, agreed to be issued or the subject of a
pending offer at the time of such termination and (z) in
any event, the provisions of the fourth paragraph of
Section 2(a), Section 2(c), the last sentence of Section
4(d) and Sections 4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall
survive; provided that if at the time of termination an
offer to purchase Notes has been accepted by the Company
but the time of delivery to the purchaser or its agent of
such Notes has not yet occurred, the provisions of Sections
2(b), 2(d), 4(a) through 4(e), 4(h)through 4(k) and 6 shall
also survive. If any Terms Agreement is terminated, the
provisions of the last sentence of Section 4(d) and
Sections 2(b), 2(d),4(a), 4(b), 4(e), 4(g) through 4(k), 5,
6, 7, 9, 10, 12 and 15 (which shall have been incorporated
by reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall
be terminated by an Agent or Agents because of any failure
or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement
or any
29
<PAGE>
Terms Agreement or if for any reason the Company
shall be unable to perform its obligations under this
Agreement or any Terms Agreement or any condition of any
Agent's obligations cannot be fulfilled, the Company agrees
to reimburse each Agent or such Agents as have so
terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by
such Agent or Agents in connection with this Agreement or
the offering of Notes.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Notes from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Notes. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company
was solicited by such Agent and has been accepted by the Company, but such
agent shall not have any liability to the Company in the event such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Notes.
11. Notices. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid),
telex or facsimile. Communications to the Agents will be sent, in the case of
Donaldson, Lufkin & Jenrette Securities Corporation, to 277 Park Avenue, New
York, New York 10172, facsimile: (212) 892-8244, attention: Roger Thomson;
BancAmerica Securities, Inc., 40 East 52nd Street, 6th Floor, New York, New
York, facsimile: (212) 836-5127; attention: Elizabeth Birdwell; Banque
Paribas, 787 7th Avenue, New York, New York, facsimile: (212) 841-3561;
attention: Janet Strickland; Chase Securities Inc., 270 Park Avenue, New York,
New York 10017, facsimile:(212) 834-6170); attention: Robert L. Taylor;
Citicorp Securities, Inc., 399 Park Avenue, 7th Floor, New York, New York
10043, facsimile:(212) 291-3910; attention: MTN Desk Head; Credit Lyonnais
Securities (USA) Inc., 1301 6th Avenue, 17th Floor, New
30
<PAGE>
York, New York 10019, facsimile: (212) 261-3575; attention: Debt Capital
Markets Syndicate; Deutsche Morgan Grenfell, Inc., 31 West 52nd Street, 3rd
Floor, New York, New York 10019, facsimile: (212) 469-7875; attention: Debt
Capital Markets Syndicate; First Chicago Capital Markets, Inc., One First
National Plaza, Mail Suite 0595, Chicago, Illinois 60670, facsimile: (312)
732-7954; attention: Medium Term Note Desk; NationsBanc Capital Markets, Inc.,
NC1-007-07-01, 100 North Tryon Street, Charlotte, North Carolina 28255,
facsimile: (704) 388-9939; attention: MTN Product Manager; Societe Generale
Securities Corporation, 1221 Avenue of the Americas, 6th Floor, New York, New
York 10020, facsimile: (212) 278-5099; attention: John Kelly; UBS Securities
LLC, 299 Park Avenue, 26th Floor, New York, New York 10171, facsimile: (212)
821-3667; attention: Patricia Nunes; and, if sent to the Company, to 277 Park
Avenue, New York, New York 10172; facsimile: (212) 892-4670; attention: Charles
Hendrickson, Senior Vice President and Treasurer.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any
day which is not a Saturday or Sunday or legal holiday or a day on which banks
in New York City are required or authorized by law, regulation or executive
order to close.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be signed
in counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
31
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us 15 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ Charles J. Hendrickson
-------------------------------------
Name: Charles J. Hendrickson
Title: Senior Vice President/Treasurer
Accepted in New York, New York, as of the date first above written:
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By: /s/ Roger Thomson
---------------------------------
Name: Roger Thomson
Title: Senior Vice President
BANCAMERICA SECURITIES, INC.
By: /s/ John Mulry
---------------------------------
Name: John Mulry
Title: Managing Director
BANQUE PARIBAS
By: /s/ John Powers
---------------------------------
Name: John Powers
Title: Authorized Signatory
32
<PAGE>
CHASE SECURITIES INC.
By: /s/ Robert L. Taylor
---------------------------------
Name: Robert L. Taylor
Title: Managing Director
CITICORP SECURITIES, INC.
By: /s/ J. Darrell Thomas
---------------------------------
Name: J. Darrell Thomas
Title: Managing Director
CREDIT LYONNAIS SECURITIES (USA) INC.
By: /s/ Henry Juan
---------------------------------
Name: Henry Juan
Title: Managing Director
DEUTSCHE MORGAN GRENFELL
By: /s/ Gregory B. Williams
---------------------------------
Name: Gregory B. Williams
Title: Director
FIRST CHICAGO CAPITAL MARKETS INC.
By: /s/ Raymond Neihengen
---------------------------------
Name: Raymond Neihengen
Title: Managing Director
33
<PAGE>
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Lynn T. McConnell
---------------------------------
Name: Lynn T. McConnell
Title: Senior Vice President & Director
SOCIETE GENERALE SECURITIES CORPORATION
By: /s/ John L. Kelly
---------------------------------
Name: John L. Kelly
Title: Managing Director
UBS SECURITIES LLC
By: /s/ Richard M. Messina
---------------------------------
Name: Richard M. Messina
Title: Director
34
<PAGE>
EXHIBIT A
[Principal Amount]
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
______________ __, 199_
DONALDSON, LUFKIN & JENRETTE, INC.
277 Park Avenue
New York, New York 10172
Attention:
RE: Distribution Agreement dated as of September 3, 1997
(the "Distribution Agreement")
The undersigned agrees to purchase Medium-Term notes having the following
terms:
<TABLE>
<CAPTION>
DUAL
FLOATING RATE FIXED RATE AMORTIZING CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
- ---------- ------------- ---------- ---------- -------- --------------
<S> <C> <C> <C> <C> <C>
Issue (Title): Interest Rate Basis Interest Category: Amortization Face Amount Index Currency:
____ Notes or Bases: [ ] Fixed Rate Schedule Currency:
Due ____ Security Currency Base Rate:
If LIBOR: [ ] Zero-Coupon Face Amount:
[ ] LIBOR Reuters Security
[ ] LIBOR Telerate
Registered Principle Index Maturity: Interest Rate: ___% Optional Payment Determination
Amount: per annum Currency: Agent:
Type of Global Index Currency: Designated
Security: Exchange Rate:
Registered Holder: Spread:___% Option Election
[ ] Cede & Co. [ ] plus Date(s):
[ ] other [ ] minus
Original Issue Date: Spread Option Value
Multiplier:___% Calculation Agent:
Initial Interest Rate:
Specified Payment Initial Interest Reset
Currency: Date:
[ ] interest: _____
[ ] principal: _____
A-1
<PAGE>
DUAL
FLOATING RATE FIXED RATE AMORTIZING CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
- ---------- ------------- ---------- ---------- -------- --------------
Authorized Interest Reset
Denomination: Date(s):
[ ] $1,000 and
integral multiple
thereof
[ ] other:
Minimum
Denominations:___
Additional
Increments:___
Maturity Date: Maximum Interest
Rate: %
Interest Payments Minimum Interest
Date(s): Rate: %
Subject to Interest Category:
Redemption Prior to [ ] Regular Floating
Maturity Date Rate Note
[ ] no [ ] Floating
[ ] yes Rate/Fixed Rate
Initial Redemption Note
Date: Fixed Rate
Initial Redemption Commencement
Percentage:___% Date:
Annual Fixed Rate
Redemption Interest: ___%
Percentage [ ] Inverse Floating
Reduction: ___ % Rate Note
Fixed Interest Rate:
[ ] Original Issue
Discount Note
Issue Price: ___%
Optional Repayment
Date(s):
Original Issue
Discount Note
[ ] no
[ ] yes
Issue Price: ___%
Exchange Rate
Agent:
Other Provisions:
[ ] no
[ ] yes
Addendums:
[ ] no
[ ] yes
Number of
Addendums:
</TABLE>
A-2
<PAGE>
[The certificate referred to in Section 6(e) of the Distribution Agreement and
the opinions referred to in Sections 6(b) and 6(c) of the Distribution
Agreement will be required.]
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11, 12 and 15
of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if
set forth in full herein. Additionally, the undersigned agrees to comply with
all applicable securities laws or regulations of any jurisdiction (including
without limitation state securities and Blue Sky laws).
This Agreement is subject to termination in our absolute discretion on the
terms incorporated by reference herein. If this Agreement is so terminated, the
provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
[NAME OF AGENT(S)]
By:
---------------------------------
Name:
Title:
Accepted:
DONALDSON, LUFKIN & JENRETTE, INC.
By:
----------------------------------
Name:
Title:
A-3
<PAGE>
EXHIBIT B
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes (the "Notes"), are to be offered on a
continuous basis by Donaldson, Lufkin & Jenrette, Inc. (the "Company"). Each
of Donaldson, Lufkin & Jenrette Securities Corporation, BancAmerica
Securities, Inc., Banque Paribas, Chase Securities Inc., Citicorp Securities,
Inc., Credit Lyonnais Securities (USA) Inc., Deutsche Morgan Grenfell Inc.,
First Chicago Capital Markets, Inc., NationsBanc Capital Markets, Inc.,
Societe Generale Securities Corporation and UBS Securities LLC (each, an
"Agent") has agreed to solicit offers to purchase the Notes in registered
form. The Notes are being sold pursuant to a Distribution Agreement dated as
of September 3, 1997 (the "Agreement") between the Company and the Agents. In
the Agreement, each Agent has agreed to use its reasonable efforts to solicit
purchases of the Notes. Each Agent, as principal, may purchase Notes for its
own account and if it does so, the Company and such Agent will enter into a
terms agreement (each, a "Terms Agreement"), as contemplated by the Agreement.
The Notes will be issued under an Indenture dated as of September 3,
1997 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Chase Manhattan Bank (the "Bank") will be the
Registrar, Calculation Agent, Authenticating Agent and Paying Agent for the
Notes, and will perform the duties specified herein. Each Note will bear
interest at either a fixed rate (the "Fixed Rate Notes"), or a floating rate
(the "Floating Rate Notes"). The Notes will be issued in U.S. dollars or other
currencies, currency units or composite currencies (the "Specified Currency").
Each Note will be represented by either a Global Security (as defined below)
delivered to the Bank, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a
certificate issued in definitive form delivered to the holder thereof or a
person designated by such holder (a "Certificated Note"). Certificated Notes
will not be exchangeable for Book-Entry Notes, and Book-Entry Notes will not
be exchangeable for and will not otherwise be issuable as Certificated Notes
except in limited circumstances.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof as they may subsequently be amended as
the result of changes in DTC's operating procedures, and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Unless otherwise defined herein, terms defined in the
Indenture or the Notes shall be used herein as therein defined.
B-1
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PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Bank will perform
the custodial, document control and administrative functions described below,
in accordance with its respective obligations under a Letter of Representation
from the Company and the Bank to DTC, dated as of the date of the Agreement
(the "Letter of Representation"), and a Medium-Term Note Certificate Agreement
between the Bank and DTC, dated as of March 10, 1989 (such agreement may be
superseded at a future date by a Medium-Term Note Certificate Agreement
between the Bank and DTC dated as of December 2, 1988 as a matter of
administrative convenience), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons (a
"Global Security") representing up to U.S.
$200,000,000 principal amount (or, if the Specified
Currency is other than U.S. dollars, the equivalent
thereof in such Specified Currency) of all such
Notes that have the same Purchase Price, Settlement
Date, Maturity Date, redemption or repayment
provisions, Interest Payment Date(s), Original Issue
Date, original issue discount provisions (if any),
and, in the case of Fixed Rate Notes, Interest Rate,
modified payment upon redemption, repayment or
acceleration (if any), amortization schedule (if
any) or, in the case of Floating Rate Notes, Initial
Interest Rate, Interest Payment Period, Calculation
Agent, Interest Rate Basis, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or Spread
Multiplier (if any), Alternate Rate Event Spread (if
any), Minimum Interest Rate (if any) and Maximum
Interest Rate (if any), Index currency (if any) and,
in each case, any other relevant terms (collectively
"Terms"). Each Global Security will be dated and
issued as of the date of its authentication by the
Bank. Each Global Security will bear an "Interest
Accrual Date," which will be (i) with respect to any
Global Security (or any portion thereof) issued on
any date of settlement, its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange
of a Global Security, or in lieu of a destroyed,
lost or stolen Global Security, the most recent
Interest Payment Date to which interest had been
paid or duly provided for on the predecessor Global
Security or Securities (or if no such payment or
provision has been made, the original issuance date
of the predecessor Global Security), regardless of
the date of authentication of such subsequently
issued Global Security. No Global Security will
represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note.
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The Company has arranged with the CUSIP Numbers
Service Bureau of Standard & Poor's Corporation
(the "CUSIP Service Bureau") for the reservation of
a series of approximately 900 CUSIP numbers
(including tranche numbers) for assignment to the
Global Securities representing the Book-Entry
Notes. The Company has obtained from the CUSIP
Service Bureau a written list of each series of
reserved CUSIP numbers and has delivered to the
Bank and DTC the written list of 900 CUSIP numbers
of such series. The Bank will assign CUSIP numbers
to Global Securities as described below under
Settlement Procedure "B." DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers
that the Bank has assigned to Global Securities. At
any time when fewer than 100 of the reserved CUSIP
numbers of either series remain unassigned to
Global Securities, the Bank shall so advise the
Company and, if it deems necessary, the Company
will reserve additional CUSIP numbers for
assignment to Global Securities representing
Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Company shall deliver a list of
such additional CUSIP numbers to the Bank and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in
DTC with respect to such Book-Entry Note (the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such beneficial owner in such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Book-Entry Note.
Exchanges: The Bank may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that
represent Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date, (ii) a date, occurring at least thirty days
after such written notice is delivered and at least
thirty days before the next Interest Payment Date
for
B-3
<PAGE>
such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP
number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will
send to its Participants (including the Bank) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to the
specified exchange date, the Bank will deliver to
the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified
exchange date, the Bank will exchange such Global
Securities for a single Global Security bearing the
new CUSIP number and a new Interest Accrual Date,
and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed U.S.
$200,000,000 (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in
such Specified Currency) in aggregate principal
amount, one Global Security will be authenticated
and issued to represent each U.S. $200,000,000
principal amount (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in
such Specified Currency) of the exchanged Global
Security and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine
months or more from its date of issue.
Currency: Book-Entry Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Notice of
Redemption: The Bank will give notice to DTC prior to each
redemption date or repayment date (as specified in
the Note), if any, at the time and in the manner
set forth in the Letter of Representation.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Book-Entry Notes will be issued in
denominations of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable
Pricing Supplement) or any amount in excess thereof
which is an integral multiple of $1,000 (or, if the
Specified Currency is other than U.S. dollars,
integral multiples of such minimum denomination
thereof specified in the applicable Pricing
Supplement).
B-4
<PAGE>
Global Securities will be denominated in principal
amounts not in excess of U.S. $200,000,000 (or, if
the Specified Currency is other than U.S. dollars,
the equivalent thereof in such Specified Currency).
If one or more Book-Entry Notes having an aggregate
principal amount in excess of U.S. $200,000,000 (or,
if the Specified Currency is other than U.S.
dollars, the equivalent thereof in such Specified
Currency) would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be issued to represent each
U.S. $200,000,000 principal amount (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) of
such Book-Entry Note or Notes and an additional
Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest: General. Unless otherwise specified in the
applicable Pricing Supplement, interest on each
Book-Entry Note will accrue from the Interest
Accrual Date of the Global Security representing
such Book-Entry Note. Each payment of interest on a
Book-Entry Note will include interest accrued from
and including the immediately preceding Interest
Payment Date in respect of which interest has been
paid or duly made available for payment (or from and
including the date of issue, if no interest has been
paid with respect to such Book-Entry Note) to but
excluding the related Interest Payment Date or the
Maturity Date, as the case may be. Interest payable
at the maturity or upon redemption or repayment of a
Book-Entry Note will be payable to the person to
whom the principal of such Note is payable. Standard
& Poor's Corporation will use the information
received in the pending deposit message described
under Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate weekly bond
report published by Standard & Poor's Corporation.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment
Date.
Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
Interest Payment Dates for Fixed Rate Book-Entry
Notes will be June 15 and December 15 of each year;
provided that, in addition to other amounts due and
payable on any Maturity Date, interest accrued from
and including the immediately preceding Interest
Payment Date shall be paid on such Maturity Date. In
B-5
<PAGE>
the event that any Interest Payment Date or
Maturity Date for a Fixed Rate Book-Entry Note is
not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the
period from and after such Interest Payment Date or
Maturity Date to such next succeeding Business Day.
The first payment of interest on any Fixed Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Record
Date.
Floating Rate Book-Entry Notes. Except as provided
in the applicable Pricing Supplement, interest will
be payable in the case of Floating Rate Book-Entry
Notes which reset (i) daily, weekly or monthly, on
a Business Day that occurs in each month or that
occurs in each third month, as specified in the
applicable Pricing Supplement; (ii) quarterly, on a
Business Day that occurs in each third month, as
specified in the applicable Pricing Supplement;
(iii) semi-annually, on a Business Day that occurs
in each of two months of each year, as specified in
the applicable Pricing Supplement; and (iv)
annually, on a Business Day that occurs in one
month of each year, as specified in the applicable
Pricing Supplement (each, an "Interest Payment
Date"), and, in each case, on the Maturity Date. If
an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is
not a Business Day, such Interest Payment Date will
be the next succeeding Business Day and no interest
shall accrue for the period from and after such
Interest Payment Date, except that if such Note is
a LIBOR Note and such Business Day falls in the
next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day. In the case of a Floating Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Notice of Interest Payment and Record Dates. On the
first Business Day of January, April, July and
October of each year, the Bank will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Book-Entry Notes during the three-month period
beginning on such first Business Day.
Calculation of
Interest: Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months.
B-6
<PAGE>
Floating Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Book-Entry Notes
will be determined as set forth in the form of such
Notes. Interest on Floating Rate Book-Entry Notes
will be calculated on the basis of actual days
elapsed and a year of 360 days except that in the
case of Treasury Rate Notes, interest will be
calculated on the basis of the actual number of
days in the year.
Payments of Principal
and Interest: Payments of Interest. Promptly after each Record
Date, the Bank will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount
of interest to be paid on each Global Security other
than an Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption
or repayment date) and the total of such amounts.
DTC will confirm the amount payable on each such
Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. In the case of
Amortizing Notes, the Bank will provide separate
written notice to DTC prior to each Interest Payment
Date at the time and in the manner set forth in the
Letter of Representation. The Company will pay to
the Bank, as paying agent, the total amount of
interest due on such Interest Payment Date (and, in
the case of an Amortizing Note, principal and
interest) (other than at maturity), and the Bank
will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment."
Payments at Maturity or Upon Redemption or
Repayment. On or about the first Business Day of
each month, the Bank will deliver to the Company
and DTC a written list of principal and interest to
be paid on each Global Security other than an
Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following
month. The Company and DTC will confirm the amounts
of such principal and interest payments with
respect to each such Global Security on or about
the fifth Business Day preceding the Maturity Date
or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Bank
will provide separate written notice to DTC prior
to the Maturity Date and any redemption or
repayment date, as the case may be, at the times
and in the manner set forth in the Letter of
Representation. The Company will pay to the Bank,
as the paying agent, the principal amount of such
Global Security, together with interest due at such
Maturity Date or redemption or repayment date. The
Bank will pay such amounts to DTC at the times and
in the manner set forth below under "Manner of
Payment." If any Maturity Date or redemption or
repayment date of a Global Security representing
B-7
<PAGE>
Book-Entry Notes is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day with respect to such
Book-Entry Note. No interest shall accrue for the
period from and after the Maturity Date or
redemption or repayment date to such next
succeeding Business Day. Promptly after payment to
DTC of the principal and interest due on the
Maturity Date or redemption or repayment date of
such Global Security, the Bank will cancel such
Global Security in accordance with the terms of the
Indenture and deliver it to the Company with a
certificate of cancellation.
Manner of Payment. Payments on Global Securities
denominated in U.S. dollars will be made in the
manner described below. Payments on Global
Securities denominated in a Specified Currency
other than U.S. dollars will be made in accordance
with DTC's "Issuing/Paying Agent General Operating
Procedures and Participant Terminal System
Procedures for Medium-Term Notes (MTNs) Including
Deposit Notes and Medium-Term Bank Notes," subject,
further, to the provisions of the Notes. The total
amount of any principal and interest due on Global
Securities on any Interest Payment Date or at
maturity or upon redemption or repayment shall be
paid by the Company to the Bank in funds available
for immediate use by the Bank not later than 9:30
A.M. (New York City time) on such date. The Company
will make such payment on such Global Securities by
instructing the Bank to withdraw funds from an
account maintained by the Company at the Bank. The
Company will confirm such instructions in writing
to the Bank. Payment shall be made not later than
10:00 A.M. (New York City time) or as soon
thereafter as practicable, on each Maturity Date or
redemption or repayment date or, if either such
date is not a Business Day, as soon as possible
thereafter, the Bank will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal
(together with interest thereon) due on Global
Securities on any Maturity Date or redemption or
repayment date. On each Interest Payment Date or,
if any such date is not a Business Day, as soon as
possible thereafter, interest payments and, in the
case of Amortizing Notes, interest and principal
payments shall be made to DTC in same day funds in
accordance with existing arrangements between the
Bank and DTC. Thereafter on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded
in the book-entry system maintained by DTC. Neither
the Company nor the Bank shall have any
responsibility or liability for the payment by DTC
B-8
<PAGE>
to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments directly to the
beneficial owner of such Note.
Preparation of
Pricing Supplement: If any order to purchase any Book-Entry Notes is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424 under the Securities Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
request by the close of business on the following
Business Day. The relevant Agent will cause such
Pricing Supplement to be delivered to the purchaser
of the Note. In each instance that a Pricing
Supplement is prepared, the Agents receiving such
Pricing Supplement will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by
the Company will be settled on the third Business
Day pursuant to the timetable for settlement set
forth below unless the Company and the purchaser
agree to settlement on another day, which shall be
no earlier than the next Business Day.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent
shall be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
B-9
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3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
is an Amortizing Note and, if so, the
amortization schedule, or, in the case of
a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such
time), Interest Payment Dates, Interest
Payment Period, Calculation Agent,
Interest Rate Basis, Index Maturity,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any).
4. Redemption or repayment provisions, if
any.
5. Settlement date and time.
6. Price.
7. The Specified Currency.
8. Agent's commission, if any, determined
as provided in the Agreement.
9. Whether the Note is an Indexed Note, and
if it is an Indexed Note, the Indexed
Currency, the Currency Interest Rate Basis
and the Determination Agent.
10. Whether the Note is a Dual Currency
Note, and if it is a Dual Currency Note,
the Face Amount Currency, the Optional
Payment Currency, the Designated Exchange
Rate, the Option Election Dates and the
Option Value Calculation Agent.
11. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
12. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and if so, the Final Maturity Date of
such Note.
13. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and, if
so, the Issue Price).
B-10
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14. Any other applicable Terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in Settlement Procedure "A" above. The Bank
will then assign a CUSIP number to the Global
Security representing such Note and will notify the
Company and the Agent of such CUSIP number by
telephone as soon as practicable.
C. The Bank will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the relevant Agent and Standard & Poor's
Corporation:
1. The information set forth in Settlement
Procedure "A."
2. The Initial Interest Payment Date for
such Note, the number of days by which
such date succeeds the related DTC Record
Date (which in the case of Floating Rate
Notes which reset daily or weekly, shall
be the date five calendar days immediately
preceding the applicable Interest Payment
Date and, in the case of all other Notes,
shall be the Record Date as defined in the
Note) and, if known, the amount of
interest payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
5. Whether such Note is an Amortizing Note
(by an appropriate notation in the
comments field of DTC's Participant
Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agents
and the Bank.
D. The Bank will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to the Bank's
participant account at DTC.
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<PAGE>
F. The Bank will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Bank's participant account and credit such Note to
the relevant Agent's participant account and (ii)
debit such Agent's settlement account and credit
the Bank's settlement account for an amount equal
to the price of such Note less such Agent's
commission, if any. The entry of such a deliver
order shall constitute a representation and
warranty by the Bank to DTC that (a) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (b) the Bank is
holding such Global Security pursuant to the Medium
Term Note Certificate Agreement between the Bank
and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note to
the participant accounts of the Participants with
respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. With respect to Notes denominated in U.S.
dollars, the Bank will credit to the U.S. dollar
account of the Company maintained at a bank located
in New York City (or with respect to Notes payable
in a Specified Currency other than U.S. dollars, to
a bank notified to such Agent from time to time in
writing, which bank shall be located outside the
United Kingdom in the case of Notes payable in a
Specified Currency other than pounds sterling and
which mature not later than five years from and
including the date of issue thereof), notified to
the Bank from time to time in writing, in funds
available for immediate use in the amount
transferred to the Bank, in accordance with
Settlement Procedure "F."
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Quarterly, the Bank will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
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Indenture and setting forth a brief description of
any sales of which the Company has advised the Bank
but which have not yet been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes to or
through an Agent for settlement on the first
Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than
the respective times (New York City time) set forth
below:
Settlement Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A,"
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon
and 2:00 P.M., respectively, on the first Business
Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedure
"B" and "C" shall be completed as soon as such rate
has been determined but no later than 12 Noon and
2:00 P.M., respectively, on the second Business Day
before the settlement date. Settlement Procedure
"H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date. If
settlement of a Book-Entry Note is rescheduled or
canceled, the Bank, after receiving notice from the
Company or the Agent, will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.
on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If the Bank fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F," the Bank may deliver
to DTC, through DTC's Participant Terminal System,
as soon as practicable a withdrawal message
instructing DTC to debit such Note to
B-13
<PAGE>
the Bank's participant account, provided that the
Bank's participant account contains a principal
amount of the Global Security representing such
Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes
represented by a Global Security, the Bank will
mark such Global Security "canceled," make
appropriate entries in the Bank's records and send
such canceled Global Security to the Company. The
CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security,
the Bank will exchange such Global Security for two
Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the relevant Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G,"
respectively. Thereafter, the Bank will deliver the
withdrawal message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes
to have been represented by a Global Security, the
Bank will provide, in accordance with Settlement
Procedures "D" and "F," for the authentication and
issuance of a Global Security representing the
Book-Entry Notes to be represented by such Global
Security and will make appropriate entries in its
records.
Bank Not to Risk
Funds: Nothing herein shall be deemed to require the Bank
to risk or expend its own funds in connection with
any payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all parties
that payments made by the Bank to the Company, the
Agents, DTC or any
B-14
<PAGE>
holders of Notes shall be made only to the extent
that funds are provided to the Bank for such
purpose.
B-15
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR
CERTIFICATED NOTES
The Bank will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the Bank. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to any Certificated
Note (or any portion thereof) issued on any date of
settlement, such date of settlement and (ii) with
respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Bank.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but
different denominations without service charge.
Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine
months or more from its date of issue.
Currency: Certificated Notes will be denominated in U.S.
dollars unless otherwise specified in the applicable
Pricing Supplement.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Certificated Notes will be issued in
principal amounts of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable
Pricing Supplement), or any amount in excess thereof
which is an integral multiple of $1,000 (or, if the
Specified Currency is other than U.S. dollars,
integral multiples of such minimum denomination
thereof specified in the applicable Pricing
Supplement).
Interest: General. Interest on each Certificated Note will
accrue from the Original Issue Date of such Note for
the first interest period and from the most recent
date to which interest has been paid for all
subsequent interest periods. Unless otherwise
specified in the applicable Pricing Supplement,
B-16
<PAGE>
each payment of interest on a Certificated Note
will include interest accrued from and including
the immediately preceding Interest Payment Date to
but excluding the related Interest Payment Date or
the Maturity Date, as the case may be.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment
Date.
Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
Interest Payment Dates for Fixed Rate Certificated
Notes will be made semiannually on June 15 and
December 15 of each year; provided that, in
addition to other amounts due and payable on any
Maturity Date, interest accrued from and including
the immediately preceding Interest Payment Date
shall be paid on such Maturity Date. In the event
that any Interest Payment Date or Maturity Date for
a Fixed Rate Certificated Note is not a Business
Day, the payment due on such day shall be made on
the next succeeding Business Day, and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date or Maturity
Date to such next succeeding Business Day. The
first payment of interest on any Fixed Rate
Certificated Note issued between a Record Date and
an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding
Record Date.
Floating Rate Certificated Notes. Except as
provided in the applicable Pricing Supplement,
interest will be payable in the case of Floating
Rate Certificated Notes which reset (i) daily,
weekly or monthly, on a Business Day that occurs in
each month or that occurs in each third month, as
specified in the applicable Pricing Supplement;
(ii) quarterly, on a Business Day that occurs in
each third month, as specified in the applicable
Pricing Supplement; (iii) semi-annually, on a
Business Day that occurs in each of two months of
each year, as specified in the applicable Pricing
Supplement; and (iv) annually, on a Business Day
that occurs in one month of each year, as specified
in the applicable Pricing Supplement (each, an
"Interest Payment Date"), and, in each case, on the
Maturity Date. If an Interest Payment Date for
Floating Rate Certificated Notes would otherwise be
a day that is not a Business Day, such Interest
Payment Date will be the next succeeding Business
Day and no interest shall accrue for the period
from and after such Interest Payment Date, except
that if such Note is a LIBOR Note and such Business
Day falls in the next succeeding calendar month,
such Interest Payment Date will be the immediately
preceding Business Day. In the case of a Floating
Rate
B-17
<PAGE>
Certificated Note issued between a Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Calculation of
Interest: Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Certificated Notes
will be determined as set forth in the form of such
Notes. Interest on Floating Rate Certificated Notes
will be calculated on the basis of actual days
elapsed and a year of 360 days except that in the
case of Treasury Rate Notes, interest will be
calculated on the basis of the actual number of
days in the year.
Payments of
Principal
and Interest: Payments on Certificated Notes denominated in U.S.
dollars will be made in the manner described below.
Payments on Certificated Notes denominated in a
Specified Currency other than U.S. dollars will be
made in the manner described below, except as
otherwise provided in the Notes. The Bank will pay
the principal amount of each Certificated Note at
maturity or upon redemption or repayment upon
presentation and surrender of such Note to the Bank.
Such payment, together with payment of interest due
at maturity or upon redemption or repayment of such
Note, will be made in funds available for immediate
use by the Bank and in turn by the holder of such
Note. Certificated Notes presented for payment to
the Bank at maturity or upon redemption or repayment
will be canceled by the Bank and delivered to the
Company with a certificate of cancellation. All
interest payments on a Certificated Note (other than
interest due at maturity or upon redemption or
repayment) will be made by check drawn on the Bank
(or another person appointed by the Bank) and mailed
by the Bank to the person entitled thereto as
provided in such Note and the Indenture; provided,
however, that the holder of U.S. $5,000,000 (or, if
the Specified Currency is other than U.S. dollars,
the equivalent thereof in such Specified Currency)
or more in aggregate principal amount of
Certificated Notes (having identical terms and
provisions) will be entitled to receive payments of
interest by wire transfer of immediately available
funds to an account maintained by the holder within
the United States. Following each Record Date, the
Bank will furnish the Company with a
B-18
<PAGE>
list of interest payments to be made on the following
Interest Payment Date for each Certificated Note
and in total for all Certificated Notes. Interest
at maturity or upon redemption or repayment will be
payable to the person to whom the payment of
principal is payable. The Bank will provide monthly
to the Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing or to be redeemed in
the next month. The Bank will be responsible for
withholding taxes on interest paid on Certificated
Notes as required by applicable law. If the
Maturity Date or redemption or repayment date of a
Certificated Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date, Maturity Date or
redemption or repayment date, as the case may be.
Preparation of
Pricing
Supplement: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424 under the Securities Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
request by the close of business on the following
Business Day. The relevant Agent will cause such
Pricing Supplement to be delivered to the purchaser
of the Note. In each instance that a Pricing
Supplement is prepared, the Agents receiving such
Pricing Supplement will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such
Agent's delivery of such Note against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note. All offers
accepted by the Company will be settled on or before
the third Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement
set forth below, unless the Company and the
purchaser agree to settlement on another date.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company to or through
an Agent shall be as follows:
B-19
<PAGE>
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such Note
is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, the applicability
of Annual Interest Payments and whether
such Note is an Amortizing Note and, if so,
the amortization schedule, or, in the case
of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such
time), Interest Payment Dates, Interest
Payment Period, Calculation Agent, Interest
Rate Basis, Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any), and the Alternate Rate Event
Spread (if any).
7. Redemption or repayment provisions, if
any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined
as provided in the Agreement.
11. Specified Currency.
12. Denominations.
B-20
<PAGE>
13. Whether the Note is an Indexed Note,
and if it is an Indexed Note, the Indexed
Currency, the Currency Interest Rate Basis
and the Determination Agent.
14. Whether the Note is a Dual Currency
Note, and if it is a Dual Currency Note,
the Face Amount Currency, the Optional
Payment Currency, the Designated Exchange
Rate, the Option Election Dates and the
Option Value Calculation Agent.
15. If applicable, wire transfer
instructions, including name of banking
institution where transfer is to be made
and account number.
16. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
17. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
18. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and, if
so, the Issue Price).
19. Any other applicable terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth
in Settlement Procedure "A" above.
C. The Company will have delivered to the Bank a
pre-printed four-ply packet for such Note, which
packet will contain the following documents in forms
that have been approved by the Company, the relevant
Agent and the Bank:
1. Note with customer confirmation.
2. Stub One - For the Bank.
3. Stub Two - For the relevant Agent.
B-21
<PAGE>
4. Stub Three - For the Company.
D. The Bank will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such
Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and returning
it to the Bank. Such delivery will be made only
against such acknowledgment of receipt and evidence
that instructions have been given by such Agent for
payment to the U.S. dollar account of the Company
maintained at the Bank, New York, New York (or, with
respect to Notes payable in a Specified Currency
other than U.S. dollars, to an account maintained at
a bank selected by the Company which bank shall be
located outside the United Kingdom in the case of
Notes payable in a Specified Currency other than
pounds sterling that mature not later than five
years from and including the date of issue thereof)
in funds available for immediate use, of an amount
equal to the price of such Note less such Agent's
commission, if any. In the event that the
instructions given by such Agent for payment to the
account of the Company are revoked, the Company will
as promptly as possible wire transfer to the account
of such Agent an amount of immediately available
funds equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Bank will send Stub Three to the Company by
first-class mail. Periodically, the Bank will also
send to the Company a statement setting forth the
principal amount of the Notes Outstanding as of that
date under the Indenture and setting forth a brief
description of any sales of which the Company has
advised the Bank but which have not yet been
settled.
Settlement Procedures
Timetable: For sales by the Company of Procedures Certificated
Notes to or through an Agent, Settlement Procedures
"A" through "F" set forth above shall be completed
on or before the respective times (New York City
time) set forth below:
Settlement Procedure
B-22
<PAGE>
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant
Agent will notify the Company and the Bank by
telephone and return such Note to the Bank. Upon
receipt of such notice, the Company will immediately
wire transfer to the account of such Agent an amount
equal to the amount previously credited thereto in
respect of such Note. Such wire transfer will be
made on the settlement date, if possible, and in any
event not later than the Business Day following the
settlement date. If the failure shall have occurred
for any reason other than a default by such Agent in
the performance of its obligations hereunder and
under the Distribution Agreement with the Company,
then the Company will reimburse such Agent or the
Bank, as appropriate, on an equitable basis for its
loss of the use of the funds during the period when
they were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which such failure occurred, the Bank
will mark such Note "canceled," make appropriate
entries in the Bank's records and send such Note to
the Company.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank
to risk or expend its own funds in connection with
any payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all parties
that payments made by the Bank to the Company, the
Agents, DTC or any holders of Notes shall be made
only to the extent that funds are provided to the
Bank for such purpose.
B-23
<PAGE>
EXHIBIT C
[Letterhead of Purchaser]
_______, 199_
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
This letter sets forth the terms and conditions upon which [name of
Purchaser] (the "Purchaser") proposes to purchase as principal from Donaldson,
Lufkin & Jenrette, Inc. (the "Company") the Medium-Term Notes (the "Purchased
Securities") of the Company described in Schedule I hereto and in the
Company's Prospectus dated June 20, 1997, as supplemented by the Prospectus
Supplement dated August __, 1997 and Pricing Supplement No. [insert number]
relating to the Purchased Securities (collectively, the "Prospectus").
The Company acknowledges that it has entered into a Distribution
Agreement, dated August __, 1997 (the "Distribution Agreement"), with
Donaldson Lufkin & Jenrette Securities Corporation, BancAmerica Securities,
Inc., Banque Paribas, Chase Securities Inc., Citicorp Securities, Inc., Credit
Lyonnais Securities (USA) Inc., Deutsche Morgan Grenfell Inc., First Chicago
Capital Markets, Inc., NationsBanc Capital Markets, Inc., Societe Generale
Securities Corporation and UBS Securities LLC, as agents (the "Agents"),
providing for the sale of its Medium-Term Notes due nine months or more from
date of issue to or through the Agents acting as principal or agent. The
Company represents and warrants to the Purchaser that the representations and
warranties of the Company made in the Distribution Agreement are true and
correct as though made on and as of the date hereof and will be true and
correct on and as of the Time of Delivery; provided, however, that the
following terms have the meanings indicated: (i) "Agent" means the Purchaser;
(ii) "this Agreement" means this letter and (iii) "Notes" means the Purchased
Securities.
The Company and the Purchaser further agree that the following
provisions of the Distribution Agreement shall be incorporated by reference
into and made a part of this letter with respect to the Purchased Securities,
as if the Purchaser were an Agent purchasing Notes as principal pursuant to a
Terms Agreement and this letter were a Terms Agreement (and the Purchaser were
the Agent signatory thereto): (i) Section 4, for so long as the Purchaser
shall be required to deliver a prospectus in connection with the Purchased
Securities; (ii) Section 5; (iii) Section 6; and (iv) Section 7.
Terms used herein without definition have the meanings specified in
the Distribution Agreement.
C-1
<PAGE>
Very truly yours,
[NAME OF PURCHASER]
By:
----------------------------------------
Name:
Title:
Agreed and accepted.
DONALDSON, LUFKIN & JENRETTE, INC.
By
--------------------------------
Name:
Title:
C-2
<PAGE>
Schedule I
Designation:
Principal Amount:
Issue Price:
Original Issue Date:
Interest rate and
other provisions: As described in the Prospectus.
Purchase Price:
Time of Delivery:
Place of Delivery:
Manner of payment
and delivery: As described in the Administrative Procedures
relating to [Book-Entry] [Certificated] Notes or as
otherwise agreed by the parties.
Other Terms:
C-3
<PAGE>
- -------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC.
as the Company
and
--------------
THE CHASE MANHATTAN BANK
as Trustee
--------------
Indenture
Dated as of September 3, 1997
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
<S> <C>
RECITALS OF THE COMPANY................................................................1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions...........................................................1
SECTION 1.2 Other Definitions.....................................................7
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.....................8
SECTION 1.4 Rules of Construction.................................................8
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating.......................................................9
SECTION 2.2 Execution and Authentication..........................................9
SECTION 2.3 Amount Unlimited; Issuable in Series.................................10
SECTION 2.4 Denomination and Date of Securities; Payments of Interest............14
SECTION 2.5 Agents Generally.....................................................14
SECTION 2.6 Paying Agent to Hold Money in Trust..................................15
SECTION 2.7 Transfer and Exchange................................................15
SECTION 2.8 Replacement Securities...............................................19
SECTION 2.9 Outstanding Securities...............................................20
SECTION 2.10 Temporary Securities.................................................21
SECTION 2.11 Cancellation.........................................................23
SECTION 2.12 CUSIP Numbers........................................................23
SECTION 2.13 Defaulted Interest...................................................23
SECTION 2.14 Series May Include Tranches..........................................23
SECTION 2.15 Computation of Interest..............................................24
SECTION 2.16 Currency and Manner of Payment in Respect of Securities..............24
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article.............................................30
- -----------------
*Note: The Table of Contents shall not for any purposes be deemed to be a part of the
Indenture.
i
<PAGE>
SECTION 3.2 Notice of Redemption; Partial Redemptions............................30
SECTION 3.3 Payment of Securities Called for Redemption..........................31
SECTION 3.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption...........................................................32
SECTION 3.5 Mandatory and Optional Sinking Funds.................................33
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities................................................35
SECTION 4.2 Maintenance of Office or Agency......................................36
SECTION 4.3 Negative Pledge......................................................37
SECTION 4.4 Certificate to Trustee...............................................37
SECTION 4.5 Reports by the Company...............................................37
SECTION 4.6 Calculation of Original Issue Discount...............................37
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc..........................................38
SECTION 5.2 Successor Substituted................................................38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default....................................................39
SECTION 6.2 Acceleration.........................................................40
SECTION 6.3 Other Remedies.......................................................42
SECTION 6.4 Waiver of Past Defaults..............................................42
SECTION 6.5 Control by Majority..................................................43
SECTION 6.6 Limitation on Suits..................................................43
SECTION 6.7 Rights of Holders to Receive Payment.................................44
SECTION 6.8 Collection Suit by Trustee...........................................44
SECTION 6.9 Trustee May File Proofs of Claim.....................................44
SECTION 6.10 Application of Proceeds..............................................44
SECTION 6.11 Restoration of Rights and Remedies...................................45
SECTION 6.12 Undertaking for Costs................................................46
SECTION 6.13 Rights and Remedies Cumulative.......................................46
SECTION 6.14 Delay or Omission Not Waiver.........................................46
ARTICLE 7
TRUSTEE
SECTION 7.1 General..............................................................46
ii
<PAGE>
SECTION 7.2 Certain Rights of Trustee............................................46
SECTION 7.3 Individual Rights of Trustee.........................................48
SECTION 7.4 Trustee's Disclaimer.................................................49
SECTION 7.5 Notice of Default....................................................49
SECTION 7.6 Reports by Trustee to Holders........................................49
SECTION 7.7 Compensation and Indemnity...........................................49
SECTION 7.8 Replacement of Trustee...............................................50
SECTION 7.9 Successor Trustee by Merger, Etc.....................................51
SECTION 7.10 Eligibility..........................................................51
SECTION 7.11 Money Held in Trust..................................................52
SECTION 7.12 Right of Trustee in Capacity of Registrar or Paying Agent............52
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment................................52
SECTION 8.2 Defeasance...........................................................53
SECTION 8.3 Covenant Defeasance..................................................54
SECTION 8.4 Application of Trust Money...........................................55
SECTION 8.5 Repayment to Company.................................................55
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders...........................................56
SECTION 9.2 With Consent of Holders..............................................56
SECTION 9.3 Revocation and Effect of Consent.....................................58
SECTION 9.4 Notation on or Exchange of Securities................................58
SECTION 9.5 Trustee to Sign Amendments, Etc......................................58
SECTION 9.6 Conformity with Trust Indenture Act..................................59
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939..........................................59
SECTION 10.2 Notices..............................................................59
SECTION 10.3 Certificate and Opinion as to Conditions Precedent...................60
SECTION 10.4 Statements Required in Certificate or Opinion........................60
SECTION 10.5 Evidence of Ownership................................................61
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar..........................62
SECTION 10.7 Payment Date Other Than a Business Day...............................62
SECTION 10.8 Governing Law........................................................62
SECTION 10.9 No Adverse Interpretation of Other Agreements........................62
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SECTION 10.10 Successors...........................................................62
SECTION 10.11 Duplicate Originals..................................................62
SECTION 10.12 Separability.........................................................62
SECTION 10.13 Table of Contents, Headings, Etc.....................................62
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.....................................63
SECTION 10.15 Judgment Currency....................................................63
SECTION 10.16 Moneys of Different Currencies To Be Segregated......................63
SECTION 10.17 Language of Notices, etc.............................................63
SECTION 10.18 Changes in Exhibits..................................................63
SIGNATURES............................................................................65
EXHIBIT A.1 Form of Certificate To Be Given by Person Entitled to
Receive Unregistered Security .......................................A.1-1
EXHIBIT A.2 Form Certificate To Be Given by Euroclear and Cedel
in Connection with the Exchange of a Portion of a
Temporary Global Security............................................A.2-1
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INDENTURE, dated as of September 3, 1997 between Donaldson, Lufkin &
Jenrette, Inc., a Delaware corporation, as the Company, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Company according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent, Exchange
Rate Agent or Authenticating Agent.
"Authorized Newspaper" means a newspaper of general circulation in
the place of publication(which, in the case of The City of New York, will, if
practicable, be The Wall Street Journal (Eastern Edition) and in the case of
London, will, if practicable, be the Financial Times (London Edition))
published in an official language of the country of publication customarily
published each Business Day in the place of publication. If it shall be
impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
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"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof certified by the
secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"Business Day" means with respect to any Security any day that is not
a Saturday or Sunday and that is not a day on which banking institutions are
generally authorized or obligated by law, regulation or executive order to
close in The City of New York and (i) with respect to Securities denominated
in a currency other than Dollars or ECU, such day that is not a day on which
banking institutions are generally authorized or obligated by law, regulation
or executive order to close in the principal financial center of the country
of the currency, in which the Security is denominated or (ii) with respect to
Securities denominated in ECU, a day that is a non-ECU clearing day as
determined by the ECU Banking Association in Paris. "Business Day" means with
respect to any Authorized Newspaper any day that is not a Saturday or Sunday
and that is not a day on which banking institutions are generally authorized
or obligated by law, regulation or executive order to close in the place of
publication of such Authorized Newspaper.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or nonvoting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 450 West 33rd Street, 15th Floor, New York, New York 10001, Attn:
Global Trusts Services.
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"Default" means any Event of Default as defined in Section 6.1 and
any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Company pursuant to Section 2.3
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"DLJSC" means Donaldson, Lufkin & Jenrette Securities Corporation, a
Delaware corporation and wholly-owned subsidiary of the Company or any
Subsidiary of the Company which shall hereafter succeed by merger or otherwise
to all or substantially all of the business of Donaldson, Lufkin & Jenrette
Securities Corporation.
"ECU" means the European Currency Unit that is from time to time used
as the unit of account of the European Communities. If changes are made by the
European Communities to the nature or composition of the ECU, references
herein to the ECU shall be construed as references to the ECU as so changed.
References herein to the ECU as a currency in its own right shall be construed
as including references to the Euro.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent" means any entity appointed by the Company
pursuant to Section 2.5 to determine conversion rates and equivalents among
currencies or currency units.
"Exchange Rate Officers' Certificate" means a certificate setting
forth (i) the applicable Official Currency Unit Exchange Rate and (ii) the
Dollar or Foreign Currency or currency unit amounts of principal, premium, if
any, and interest, if any, respectively (on an aggregate basis and on the
basis of a Security having a principal amount of 1,000 units in the relevant
currency or currency unit), payable on the basis of such Official Currency
Unit Exchange Rate, sent (in the case of a telex) or executed (in the case of
a certificate) by the Controller or any Assistant Controller or by the
Treasurer or any Assistant Treasurer of the Company and delivered to the
Trustee; such certificate need not comply with Section 10.3.
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"Foreign Currency" means a currency issued by the government of any
country other than the United States of America and shall include the ECU and
the Euro and includes any currency unit.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Non-U.S. person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior
vice president, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 10.4 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4.
"Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the currency or currency unit of payment calculated by the Exchange
Rate Agent for the Securities of the relevant series (in the case of ECU,
reported by the Commission of the European Communities and on the date hereof
based on the rates in effect at 2:30 p.m., Brussels time, on the exchange
markets of the Component Currencies of ECU), on the Business Day (in the city
in which such Exchange Rate Agent has its principal office) immediately
preceding delivery of any Exchange Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, complying with Section
10.4. Each such opinion shall
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comply with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.4, if and to the extent required thereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon redemption, repayment or a declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
"Paying Agent" means any entity appointed by the Company pursuant to
Section 2.5 to accept Securities presented for payment and to pay interest, if
any, on Securities.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the Principal of and interest, if any,
on the Securities of that series are payable as specified in accordance with
Section 2.3.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
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"Registered Security" means any Security registered on the Security
Register (as defined in Section 4.2) (including without limitation any
Security in temporary or definitive global registered form).
"Registrar" means the entity appointed by the Company pursuant to
Section 2.5 to accept Securities for registration of transfer or exchange.
"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 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.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person or one or more
other Subsidiaries of such Person, or by the Person and one or more
Subsidiaries.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter means such successor and if at any time there is
more than one such Trustee, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that
Series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or
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(ii) obligations of an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, 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.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at
the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or
on such Security, and calculated in accordance with the constant interest
method or such other accepted financial practice as is specified in the terms
of such Security.
SECTION 1.2 Other Definitions. Each of the following terms is defined
in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
cash transaction 7.3
Component Currency 2.16
Conversion Date 2.16(e)
Currency Equivalent 2.16(g)
Currency Unit Equivalent 2.16(h)
DLJSC 4.3
Event of Default 6.1
Exchange Date 2.10
Judgment Currency 10.15
mandatory sinking fund payment 3.5
Market Exchange Rate 2.16(i)
optional sinking fund payment 3.5
Permitted Liens 4.3
record date 2.4
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Term Section
---- -------
Required Currency 10.15
Security Register 4.2
self-liquidating paper 7.3
sinking fund payment date 3.5
Specified Amount 2.16(i)
Substitute Currency 2.16(a)
tranche 2.14
Valuation Date 2.16(c)
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 1.4 Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in
the plural include the singular;
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(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined
by the officers executing such Securities as evidenced by their execution of
the Securities. Unless otherwise so established, Unregistered Securities shall
have coupons attached.
SECTION 2.2 Execution and Authentication. The chairman of the board
of directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Securities (other than coupons) for the
Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
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At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having
attached thereto appropriate coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and make
available for delivery such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of such
series, and (subject to Article 7) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were
established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that
the form or forms and terms of the Securities of such series have
been, or will be when established in accordance with such procedures
as shall be referred to therein, established in compliance with this
Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and make available for delivery one or more
Registered Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities
of such series issued in such form and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or its custodian or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this 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
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Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant
to a Board Resolution or one or more indentures supplemental hereto, prior to
the initial issuance of Securities of any series (subject to the last sentence
of this Section 2.3),
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto);
(3) the date or dates on which the Principal of the
Securities of the series is payable (which date or dates may be fixed
or extendible);
(4) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place or
places where the Principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities
of the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
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(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof;
(10) the currency or currencies, or currency unit or units,
in which the Securities are denominated and in which the Principal of
or interest, if any, on the Securities is payable and, if the
Principal of or interest, if any, on any of the Securities of the
series is to be payable at the election of the Company or Holder
thereof, or under some or all other circumstances, in a currency or
currencies, or currency unit or units, other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made, or the other circumstances under which any of the Securities
are to be so payable, including without limitation the application of
Section 2.16(b) and any deletions to, modifications of or additions
to the provisions thereof, and any provision requiring the Holder to
bear currency exchange costs by deduction from such payments;
(11) if the amount of payments of Principal of or interest,
if any, on any of the Securities of the series may be determined with
reference to an index based on (i) a currency or currencies or
currency unit or units other than that in which such Securities are
stated to be payable or (ii) any method, not inconsistent with the
provisions of this Indenture, specified in or pursuant to such Board
Resolution, then in each case (i) and (ii) the manner in which such
amounts shall be determined;
(12) if payment of the Principal of and interest on the
Securities of the series shall be payable in one or more Foreign
Currencies or currency units, the manner in which any such currency
shall be valued against other currencies in which any other
Securities shall be payable and the Exchange Rate Agent, if any, for
such series;
(13) whether the Securities of the series or any portion
thereof will be issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Registered or Unregistered Securities or the payment of
interest thereon and, if other than
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as provided herein, the terms upon which Unregistered Securities of
any series may be exchanged for Registered Securities of such series
and vice versa; and whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in definitive global form with or
without coupons and, if so, whether beneficial owners of interests in
any such definitive global Security may exchange such interests for
Securities of such series and of like tenor and, if so, the authorized
form and denomination and the circumstances under which and the place
or places where any such exchange may occur, if other than in the
manner provided in Section 2.7.
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary 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;
(15) whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by
non-U.S. persons in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts;
(16) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with
respect to the Securities of the series;
(17) provisions, if any, for the defeasance of the
Securities of the series (including provisions permitting defeasance
of less than all Securities of the series), which provisions may be
in addition to, in substitution for, or in modification of (or any
combination of the foregoing) the provisions of Article 8;
(18) if the Securities of the series are issuable in whole
or in part as one or more Registered Global Securities, the identity
of the Depositary for such Registered Global Security or Securities;
(19) the Person to whom any interest on any Security of the
series shall be payable, if other than the Person in whose name that
Security is registered at the close of business on the record date
for such interest, the manner in which, or the person to whom, any
interest on any Unregistered Security of the series shall be payable,
if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an interest payment date will be paid if other
than in the manner provided in Section 2.10;
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(20) any other events of default or covenants with respect to
the Securities of the series; and
(21) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any
such indenture supplemental hereto and any forms and terms of Securities to be
issued from time to time may be completed and established from time to time
prior to the issuance thereof by procedures described in such Board Resolution
or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
Officers of the Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.3.
Except as otherwise established pursuant to Section 2.3, the person
in whose name any Registered Security of any series is registered at the close
of business on any record date applicable to a particular series with respect
to any interest payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date notwithstanding any
transfer or exchange of such Registered Security subsequent to the record date
and prior to such interest payment date, except if and to the extent the
Company shall default in the payment of the interest due on such interest
payment date for such series, in which case the provisions of Section 2.13
shall apply. The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, the fifteenth calendar day
immediately preceding such interest payment date, whether or not such record
date is a Business Day.
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SECTION 2.5 Agents Generally. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written
notice to the Trustee of the name and address of any Agent and any change in
the name or address of an Agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such. The Company may remove any
Agent upon written notice to such Agent and the Trustee; provided that no such
removal shall become effective until (i) the acceptance of an appointment by a
successor Agent to such Agent as evidenced by an appropriate agency agreement
entered into by the Company and such successor Agent and delivered to the
Trustee or (ii) notification to the Trustee that the Trustee shall serve as
such Agent until the appointment of a successor Agent in accordance with clause
(i) of this proviso. The Company or any affiliate of the Company may act as
Paying Agent or Registrar; provided that neither the Company nor an affiliate
of the Company shall act as Paying Agent in connection with the defeasance of
the Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent, Authenticating Agent and Exchange Rate Agent. If, at any time, the
Trustee is not the Registrar, the Registrar shall make available to the
Trustee ten days prior to each interest payment date and at such other times
as the Trustee may reasonably request the names and addresses of the Holders
as they appear in the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later than 10:00
a.m., each Paying Agent's local time, on each due date of any Principal or
interest on any Securities, the Company shall deposit with each Paying Agent
money in immediately available funds sufficient to pay any Principal or
interest payable through such Paying Agent. The Company shall require each
Paying Agent other than the Trustee to agree in writing that such Paying Agent
shall hold in trust for the benefit of the Holders of such Securities or the
Trustee all money held by the Paying Agent for the payment of Principal of and
interest on such Securities and shall promptly notify the Trustee of any
default by the Company in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or
any affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold
in a separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in
this Indenture, and will promptly notify the Trustee in writing of its action
or failure to act as required by this Section.
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SECTION 2.7 Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 4.2 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise established pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.2, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise established pursuant
to Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. If the
Holder of an Unregistered Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, an exchange of such
Unregistered Security may be effected if the Unregistered 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 the Company and the Trustee such security or indemnity as they
may require to hold each Holder of such coupon or coupons and the Company, the
Trustee and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, interest
represented by coupons shall be payable only upon presentation and surrender of
such coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case an Unregistered Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any record date and before the opening of business at
such office or agency on the relevant interest payment date, or (ii) any
special
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record date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Unregistered
Security shall be surrendered without the coupon relating to such interest
payment date or proposed date for payment, as the case may be, 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 Unregistered Security, but
will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture. Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities
which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding the foregoing, except as otherwise established
pursuant to Section 2.3, any definitive global Unregistered Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a definitive global Unregistered Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as
contemplated by Section 2.3, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such definitive global
Unregistered Security, executed by the Company. On or after the earliest date
on which such interests may be so exchanged, such definitive global
Unregistered Security shall be surrendered by the Depositary with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such definitive global Unregistered Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such definitive
global Unregistered Securities to be exchanged which, unless the Securities of
the series are not issuable both as Unregistered Securities and as Registered
Securities, as specified as contemplated by Section 2.3, shall be in the form
of Unregistered Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 Business Days before any selection of Securities of
that series to be redeemed and ending on the relevant redemption date; and
provided further that no Unregistered Security delivered in
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exchange for a portion of a definitive global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a definitive global
Unregistered Security after the close of business at the office or agency where
such exchange occurs on (i) any 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, 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
such Registered Security, but will be payable on such interest payment date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such definitive global Unregistered
Security is payable in accordance with the provisions of this Indenture.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee, upon receipt of the Company's order
for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and make available for delivery
Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of such Registered Global Securities, in exchange for such Registered Global
Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal
to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
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Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.2 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new
Registered Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to conclusively rely on an Officers'
Certificate or an Opinion of Counsel in determining such result.
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The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or mutilated Security
of any series is surrendered to the Trustee or if a Holder claims that its
Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security
of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.8 and those Securities
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
In determining whether the Holders of the requisite principal amount
of the outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether a quorum is present
at a meeting of Holders of Securities or the number of
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votes entitled to be cast by each Holder of a Security in respect of such
Security at any such meeting, the principal amount of a Security denominated in
a Foreign Currency or currency unit shall be the Dollar equivalent obtained by
converting the specified Foreign Currency or currency unit into Dollars at the
Market Exchange Rate on the date of such determination (or, in the case of a
Security denominated in a currency unit for which there is no Market Exchange
Rate, the Dollar equivalent obtained by adding together the results obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for each such Component Currency on the date of such
determination) of the principal amount of such Security.
A Security does not cease to be outstanding because the Company or
one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its discretion the right to vote such
securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced conclusively by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company maintained
pursuant to Section 4.2 in a Place of Payment for such series for the purpose
of exchanges of Securities of such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any
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unmatured coupons) the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like aggregate principal amount of
definitive Securities of the same series and of like tenor or authorized
denominations; provided, however, that, unless otherwise specified as
contemplated by Section 2.3, no definitive Unregistered Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Unregistered Security shall be delivered in exchange for a
temporary Unregistered Security only in compliance with the conditions set
forth in Section 2.7.
If temporary Unregistered Securities of any series are issued in
global form, such temporary global Unregistered Security shall, unless
otherwise specified as contemplated by Section 2.3, be delivered to the London
office of a depositary, for the benefit of Euroclear and Cedel, for credit to
the respective accounts of the beneficial owners of interest in such Securities
(or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of any authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, definitive global form, or any combination
thereof, as specified as contemplated by Section 2.3, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified as contemplated by Section
2.3, upon such presentation by the Depositary, such temporary global Security
shall be accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a certificate dated the
Exchange Date or a subsequent date and signed by Cedel as to the portion of
such temporary global Security held for its account then to be exchanged, each
in the form set forth in Exhibit A.2 to this Indenture; and provided further
that definitive Unregistered Securities (including a definitive global
Unregistered Security) shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements of Section
2.7.
Unless otherwise specified as contemplated by Section 2.3, the
interest of a beneficial owner of Securities of a series in a temporary global
Unregistered Security shall be exchanged for definitive Unregistered
Securities of the same series and of like tenor following the Exchange Date
when the beneficial owner instructs Euroclear or Cedel, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or Cedel, as the
case may be, a certificate
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substantially in the form set forth in Exhibit A.1 to this Indenture, dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear, Cedel, the Trustee, any
Authenticating Agent appointed for such series of Securities and any Paying
Agent appointed for such series of Securities. Unless otherwise specified as
contemplated by Section 2.3, any such exchange shall be made free of charge to
the beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take
delivery of such definitive Securities in person at the offices of Euroclear or
Cedel. The definitive Unregistered Securities to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder.
SECTION 2.11 Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP," "CINS" and "ISIN" numbers (if then generally in use), and the
Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices
of redemption or exchange as a convenience to Holders and no representation
shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13 Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.3) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
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SECTION 2.14 Series May Include Tranches. A series of Securities may
include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8, 2.10, 3.1
through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any series of
Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to
each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such
series or tranche pursuant to Section 2.3. In particular, and without limiting
the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a
series of Securities shall also be deemed to provide for and permit such action
to be taken instead only with respect to Securities of one or more tranches
within that series (and such provisions shall be deemed satisfied thereby),
even if no comparable action is taken with respect to Securities in the
remaining tranches of that series.
SECTION 2.15 Computation of Interest. Except as otherwise specified
pursuant to Section 2.3 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.16 Currency and Manner of Payment in Respect of Securities.
The provisions of this Section shall apply to the Securities of any series
unless otherwise provided as contemplated by Section 2.3.
(a) The following payment provisions shall apply to any
Registered Security of any series denominated in a Foreign Currency
or any currency unit, including without limitation ECU, except as
provided in paragraph (b) below:
(1) Except as provided in subparagraph (a)(2) or in
paragraph (e) below, payment of Principal of such Registered
Security will be made at the Place of Payment by delivery of
a check in the currency or currency unit in which the
Security is denominated on the payment date against
surrender of such Registered Security, and any interest on
any Registered Security will be paid at the Place of Payment
by mailing a check in the currency or currency unit in which
such interest is payable (which shall be the same as that in
which the Security is denominated unless otherwise provided)
to the Person entitled thereto at the address of such Person
appearing on the Security Register.
(2) Payment of the Principal of, and interest, if
any, on such Security may also, subject to applicable laws
and regulations, be made at such other place or places as
may be designated by the Company by any appropriate method.
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(b) With respect to any Registered Security of any series
denominated in any currency unit, including without limitation ECU,
if the following provisions (or any substitute therefore, or addition
thereto, not inconsistent with this Indenture) are established
pursuant to Section 2.3, and if the Company has not, before the
delivery of the election referred to in clause (1) below, deposited
funds or securities in compliance with clause (i) or (if specified
pursuant to Section 2.3) clause (ii) of Section 8.1 the following
payment provisions shall apply to any payment to be made prior to the
giving of any notice to Holders of any election to redeem pursuant to
Section 3.2, except as otherwise provided in paragraphs (e) and (f)
below:
(1) A Holder of Securities of a series shall have
the option to elect to receive payments of Principal of and
interest, if any, on such Securities in a currency or
currency unit (including Dollars), other than that in which
the Security is denominated, such election, as designated in
the certificates for such Securities (or as provided by
Section 2.3, or a supplemental indenture thereto with respect
to uncertificated securities), shall be made by delivering to
the Trustee a written election not later than the close of
business in New York, New York, on the day 15 days prior to
the applicable payment date. Such election will remain in
effect for such Holder until changed by the Holder by written
notice to the Trustee (but any such written notice must be
received by the Trustee not later than the close of business
on the day 15 days prior to the next payment date to be
effective for the payment to be made on such payment date and
no such change may be made with respect to payments to be
made on any Security of such series with respect to which
notice of redemption has been given by the Company pursuant
to Article Three). Any Holder of any such Security who shall
not have delivered any such election to the Trustee in
accordance with this paragraph (b) will be paid the amount
due on the applicable payment date in the relevant currency
unit as provided in paragraph (a) of this Section. Payment of
Principal shall be made on the payment date therefor against
surrender of such Security. Payment of Principal and
interest, if any, shall be made at the Place of Payment by
mailing at such location a check, in the applicable currency
or currency unit, to the Holder entitled thereto at the
address of such Holder appearing on the Security Register.
(2) Payment of the Principal of, and interest, if
any, on such Security may also, subject to applicable laws
and regulations, be made at such other place or places as
may be designated by the Company by any appropriate method.
(c) Payment of the Principal of and interest, if any, on any
Unregistered Security will be made, except as provided in Section
2.10 with respect to temporary global Securities, unless otherwise
specified pursuant to Section 2.3, and/or Section 9.1(7), at such
place or places outside the United States as may be designated by the
Company pursuant to any applicable laws or regulations by any
appropriate method in the currency or currencies or currency unit or
units in which the Security is payable
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(except as provided in paragraph (e) below) on the payment date
therefor against surrender of the Unregistered Security, in the case
of payment of Principal or the relevant coupon, in the case of payment
of interest, if any, to a Paying Agent designated for such series
pursuant to Section 4.1.
(d) Not later than 10 Business Days (with respect to any
Place of Payment) prior to each payment date, the Trustee shall
deliver to the Company a copy of its record of the respective
aggregate amounts of Principal of, and interest, if any, on the
Securities to be made on such payment date, in the currency or
currency unit in which each of the Securities is payable, specifying
the amounts so payable in respect of Registered Securities and
Unregistered Securities and in respect of the Registered Securities as
to which the Holders of Securities denominated in any currency unit
shall have elected to be paid in another currency or currency unit as
provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 2.3, and
if at least one Holder has made such election, then, not later than
the fifth Business Day (with respect to any Place of Payment) prior to
the applicable payment date the Company will deliver to the Trustee an
Exchange Rate Officers' Certificate in respect of the Dollar or
Foreign Currency or currency unit payments to be made on such payment
date. The Dollar or Foreign Currency or currency unit amount
receivable by Holders of Registered Securities denominated in a
currency unit who have elected payment in another currency or currency
unit as provided in paragraph (b) above shall be determined by the
Company on the basis of the applicable Official Currency Unit Exchange
Rate set forth in the applicable Exchange Rate Officers' Certificate.
(e)(i) Except as set forth in clause (ii) below, if a
Foreign Currency in which an applicable Security is denominated or
payable (x) ceases to be recognized by the government of the country
which issued such currency or for the settlement of transactions by
public institutions of or within the international banking community,
(y) is a currency unit and such currency unit ceases to be used for
the purposes for which it was established, or (z) is not available to
the Company for making payments thereof due to the imposition of
exchange controls or other circumstances beyond the control of the
Company, in each such case as determined in good faith by the
Company, then with respect to each date for the payment of Principal
of and interest, if any, on the applicable Security denominated or
payable in such Foreign Currency occurring after the last date on
which such Foreign Currency was so used (the "Conversion Date"), the
Dollar or such Foreign Currency as may be specified by the Company
(the "Substitute Currency") shall become the currency of payment for
use on each such payment date (but such Foreign Currency shall, at
the Company's election, resume being the currency of payment on the
first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the change of currency no longer
prevail, in each case as determined in good faith by the Company).
The Substitute Currency amount to be paid by the Company to the
Trustee and by the Trustee or any Paying Agent to the Holder of such
Security with respect to such payment date shall be the Currency
Equivalent or Currency Unit
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Equivalent (as determined pursuant to paragraphs (g) and (h) below) of
the Foreign Currency as determined by the Exchange Rate Agent (which
determination shall be delivered in writing to the Trustee not later
than the fifth Business Day prior to the applicable payment date) as
of the Conversion Date or, if later, the date most recently preceding
the payment date in question on which such determination is possible
of performance, but not more than 15 days before such payment date
(such Conversion Date or date preceding a payment date as aforesaid
being called the "Valuation Date"). Any payment in a Substitute
Currency under the circumstances described above will not constitute
an Event of Default.
(ii) If, pursuant to the treaty establishing the European
Communities, as amended by the treaty on European Union (the
"Treaty"), one or more of the Austrian schilling, Belgian franc,
Danish krone, Dutch guilder, Finish markka, French franc, German mark,
Greek drachma, Irish pound, Italian lire, Luxembourg franc, Pound
sterling, Portuguese escudo, Spanish peseta or Swedish krona is
replaced by the ECU as a currency in its own right, then all payments
in respect of the applicable Security required to be made in any such
currency shall be effected in ECU as a currency in its own right in
conformity with legally applicable measures taken pursuant to, or by
virtue of, the Treaty and such payment will not constitute an Event of
Default. If a Foreign Currency in which an applicable Security is
denominated or payable is ECU and if the ECU is no longer used as
either the unit of account of the European Communities or a currency
in its own right, replacing all or some of the currencies of the
member countries of the European Communities, then the Substitute
Currency shall be a component currency of the ECU or Dollars. If
changes are made by the European Communities to the nature or
composition of the ECU, references herein to the ECU shall be
construed as references to the ECU as so changed. References herein to
the ECU as a currency in its own right shall be construed as including
references to the Euro.
(f) If the Holder of a Registered Security denominated in a
currency unit elects payment in a specified Foreign Currency or
currency unit as provided for by paragraph (b) and such Foreign
Currency (x) ceases to be recognized by the government of the country
which issued such currency or for the settlement of transactions by
public institutions of or within the international banking community,
(y) is a currency unit and such currency unit ceases to be used for
the purposes for which it was established, or (z) is not available to
the Company for making payments thereof due to the imposition of
exchange controls or other circumstances beyond the control of the
Company, in each such case as determined in good faith by the
Company, then such Holder shall (subject to paragraph (e) above)
receive payment in the currency or currency unit in which the
Security is denominated. Each payment covered by an election pursuant
to paragraph (b) above shall be governed by the provisions of this
paragraph (f) (but, subject to any contravening valid election
pursuant to paragraph (b) above, the specified Foreign Currency
shall, at the Company's election, resume being the currency or
currency unit, as applicable, of payment with respect to Holders who
have so elected, but only with respect
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to payments on payment dates preceded by 15 Business Days during which
the circumstances which gave rise to such currency or currency unit
becoming the currency or currency unit of payment, no longer prevail,
in each case as determined in good faith by the Company).
(g) The "Currency Equivalent" shall be determined by the
Exchange Rate Agent as of each Valuation Date and shall be obtained
by converting the initial Foreign Currency (unless such Foreign
Currency is a currency unit) into the Substitute Currency at the
Market Exchange Rate on the Valuation Date.
(h) The "Currency Unit Equivalent" shall be determined by the
Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the
Specified Amount of each initial Component Currency into the
Substitute Currency at the Market Exchange Rate on the Valuation Date
for such Component Currency.
(i) For purposes of this Section 2.16 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency
which, on the Conversion Date, was a component currency of
the relevant currency unit, including without limitation
ECU.
A "Specified Amount" of a Component Currency shall
mean the number of units (including decimals) which such
Component Currency represented in the relevant currency
unit, on the Conversion Date or, if ECU and such currency
unit is being used for settlement of transactions by public
institutions of or within the European Communities or was so
used after the Conversion Date, the Valuation Date or the
last date the currency unit was so used, whichever is later.
If after such 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 such
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 such date any Component
Currency shall be divided into two or more currencies, the
Specified Amount of such Component Currency shall be
replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former
Component Currency and such amounts shall
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thereafter be Specified Amounts an such currencies shall
thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date,
for any currency or currency unit the noon Dollar buying rate
for that currency or currency unit, as the case may be, for
cable transfers quoted in New York City on such date as
certified for customs purposes by the Federal Reserve Bank of
New York or such other rate as may be established pursuant to
Section 2.3. If such rates are not available for any reason
with respect to one or more currencies or currency units for
which an Exchange Rate is required, the Exchange Rate Agent
shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from
one or more major banks in New York City or in the country of
issue of the currency or currency unit in question, or such
other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate
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 upon which a
nonresident issuer of securities designated in such currency
or currency unit would, as determined in its sole discretion
and without liability on the part of the Exchange Rate Agent,
purchase such currency or currency unit in order to make
payments in respect of such securities.
All decisions and determinations of the Exchange Rate Agent
regarding the Currency Equivalent, the Currency Unit Equivalent 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, all Holders of the Securities
and coupons denominated or payable in the relevant currency or
currency units and the Trustee. In the event that a Foreign Currency
ceases to be used by the government of the country which issued such
currency or for the settlement of transactions by public institutions
of or within the international banking community, the Company, after
learning thereof, will immediately give notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice to the Holders)
specifying the Conversion Date. In the event the ECU ceases to be
used within the European Monetary System, or any other currency unit
in which Securities or coupons are denominated or payable, ceases to
be used for the purposes for which it was established, the Company,
after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice to the
Holders) specifying the Conversion Date. Any actions taken pursuant
to the parentheticals at the end of the first sentence of Section
2.16(e) and at the end of Section 2.16(f) shall be promptly set forth
in like notices from the Company to the Trustee and then from the
Trustee to the Holders (which notice may be mailed with payment to
the Holders).
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Subject to the provisions of Sections 7.1, 7.2 and 7.3, the
Trustee shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange
Rate Agent, and shall not otherwise have any duty or obligation to
determine such information independently.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid or sent
by overnight courier, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Registered Securities of such
series at their last addresses as they shall appear upon the Security Register
of the Company. Notice of redemption to the Holders of Unregistered Securities
of any series to be redeemed as a whole or in part, who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, shall be given by mailing notice of such redemption, by first
class mail, postage prepaid or sent by overnight courier, at least 30 days and
not more than 60 days prior to the date fixed for redemption, to such Holders
at such addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to all other
Holders of Unregistered Securities of any series to be redeemed as a whole or
in part shall be published in an Authorized Newspaper in The City of New York
and in an Authorized Newspaper in London and, if applicable, in Luxembourg or
such other place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are listed, in
each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the
date fixed for redemption. Any notice which is mailed or published in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP, CINS or ISIN numbers of the Securities to be redeemed,
the date fixed for redemption, the redemption price, the place or
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places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with coupons attached thereto,
of all coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series and tenor in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Company 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 later than 10:00 a.m. each Paying Agent's local time on the
redemption date specified in the notice of redemption given as provided in
this Section, the Company will deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 2.6) an amount of
money sufficient to redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If all of the
outstanding Securities of a series are to be redeemed, the Company will
deliver to the Trustee at least 10 days prior to the last date on which notice
of redemption may be given to Holders pursuant to the first paragraph of this
Section 3.2 (or such shorter period as shall be acceptable to the Trustee) an
Officers' Certificate stating that all such Securities are to be redeemed. If
less than all the outstanding Securities of a series are to be redeemed, the
Company will deliver to the Trustee at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first
paragraph of this Section 3.2 (or such shorter period as shall be acceptable
to the Trustee) an Officers' Certificate stating the aggregate principal
amount of such Securities to be redeemed. In case of a redemption at the
election of the Company prior to the expiration of any restriction on such
redemption, the Company shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case
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of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with-interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.11 and
8.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.4
and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of such series and tenor
(with any unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are
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identified by registration and certificate number in a written statement signed
by an Officer of the Company and delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or
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before the next succeeding sinking fund payment date. Failure of the Company,
on or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Company will make no optional sinking fund payment
with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect
to the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in Section
3.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.2 (and with the effect provided
in Section 3.3) for the redemption of Securities of such series in part at the
option of the Company. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
Not later than 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. 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 the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article 6 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.4 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities
of any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.3, payments
of interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may
be agreed to between the Company and the Paying Agent), directly to the Holder
of such Security (by Federal funds wire transfer or otherwise) if the Holder
has delivered written instructions to the Trustee 10 days prior to such
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payment date requesting that such payment will be so made and designating the
bank account to which such payments shall be so made and in the case of
payments of Principal surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled
to rely on the last instruction delivered by the Holder pursuant to this
Section 4.1 unless a new instruction is delivered 10 days prior to a payment
date. The Company will indemnify and hold each of the Trustee, its officers,
directors, employees and agents and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees and expenses) resulting from
any act or omission to act on the part of the Company or any such Holder in
connection with any such agreement or from making any payment in accordance
with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency for a Registrar and Paying Agent where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company hereby initially designates the
Corporate Trust Office of the Trustee, located in the Borough of Manhattan,
The City of New York, as such office or agency of the Company. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 10.2.
The Company shall cause the Registrar to keep a register of the
Registered Securities and of their registration, transfer and exchange (the
"Security Register").
The Company will also maintain one or more Paying Agents in each
Place of Payment in a city or cities located outside the United States
(including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of any series are
listed) where the Unregistered Securities, if any, of each series and coupons,
if any, appertaining thereto may be presented for payment. No payment on any
Unregistered Security or coupon will be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the United
States nor will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless, pursuant to applicable United
States laws and regulations then in effect, such payment can be made without
adverse tax consequences to the Company. Notwithstanding the foregoing, if
full payment in Dollars at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and
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coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York.
The Company may also from time to time designate one or more other
Places of Payment where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Place of
Payment.
SECTION 4.3 Negative Pledge. Neither the Company nor any successor
corporation will, or permit any Subsidiary to, create, assume, incur or
guarantee any indebtedness for borrowed money secured by a pledge, lien or
other encumbrance (except for Permitted Liens, as hereinafter defined) on the
Voting Stock of DLJSC, unless the Company shall cause the Securities to be
secured equally and ratably with (or, at the Company's option, prior to) any
indebtedness secured thereby. "Permitted Liens" means 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
$2,000,000 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 involves claims of less than $2,000,000,
deposits to secure (or in lieu of) surety, stay, appeal or customs bonds and
such other liens as the Board of Directors of the Company determines do not
materially detract from or interfere with the present value or control of the
Voting Stock subject thereto or affected thereby.
SECTION 4.4 Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.4)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.5 Reports by the Company. The Company covenants to file
with the Trustee, within 30 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 which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.6 Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or
merger with or into a Subsidiary or a sale, conveyance, transfer, lease or
other disposition to a Subsidiary) or permit any Person to merge with or into
the Company unless:
(i) either (x) the Company shall be the continuing Person or
(y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company shall be a corporation
organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under
this Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to
such transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions; and
(ii) the Company shall have delivered to the Trustee an
Officers' Certificate to the effect that immediately after giving
effect to such transaction, no Default shall have occurred and be
continuing and an Opinion of Counsel as to the matters set forth in
Section 5.1(i).
SECTION 5.2 Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition 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.
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ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall occur with
respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part
of the Principal of any Security of such series when the same becomes
due and payable at maturity, upon acceleration, redemption or
mandatory repurchase, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of any interest on
any Security of such series when the same becomes due and payable,
and such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches
any other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 60 days
after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of 25% or
more in aggregate principal amount of the Securities of all series
affected thereby;
(d) an involuntary case or other proceeding shall be
commenced against the Company or DLJSC with respect to the Company or
DLJSC or their respective debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of the Company or DLJSC or for any substantial part of the
property and assets of the Company or DLJSC, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against
the Company or DLJSC under any bankruptcy, insolvency or other
similar law now or hereafter in effect;
(e) the Company or DLJSC (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or DLJSC or for all or substantially all of the property and
assets of the Company or DLJSC or (C) effects any general assignment
for the benefit of creditors;
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(f) an event of default, as defined in any one or more
indentures or instruments evidencing or under which the Company has at
the date of this Indenture or shall hereafter have outstanding an
aggregate of at least $25,000,000 aggregate principal amount of
indebtedness for borrowed money, shall happen and be continuing and
such indebtedness shall have been accelerated so that the same shall
be or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall not
be rescinded or annulled within ten days after notice thereof shall
have been given to the Company by the Trustee (if such event be known
to it), or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Securities at the time
outstanding; provided, however, that if such event of default under
such indentures or instruments shall be remedied or cured by the
Company 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 further action
upon the part of either the Trustee or any of the Securityholders, and
provided further, however, that the Trustee shall not be charged with
knowledge of any such default unless written notice thereof shall have
been given to the Trustee by the Company, by the holder or an agent of
the holder of any such indebtedness, by the trustee then acting under
any indenture or other instrument under which such default shall have
occurred, or by the Holders of not less than 25% in the aggregate
principal amount of the Securities at the time outstanding;
(g) failure by the Company to make any payment at maturity,
including any applicable grace period, in respect of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed
money and such failure shall have continued for a period of ten days
after notice thereof shall have been given to the Company by the
Trustee (if such event be known to it), or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount
of the Securities at the time outstanding; provided, however, that if
such failure shall be remedied or cured by the Company or waived by
the holders of such indebtedness, then the Event of Default under
this Indenture by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Securityholders; or
(h) any other Event of Default established pursuant to
Section 2.3 with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.1 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal
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amount as may be specified in the terms of such series established pursuant to
Section 2.3) of all Securities of such affected series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (c) or (h) of Section
6.1 with respect to the Securities of one or more but not all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
amount (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clauses (d) or (e) of Section
6.1 occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the Principal as may
be specified in the terms thereof established pursuant to Section 2.3) of all
the Securities then outstanding and interest accrued thereon, if any, shall be
and become immediately due and payable, without any notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in clauses (f) or (g) of Section
6.1 or in clauses (c) or (h) of Section 6.1 with respect to the Securities of
all series then outstanding, occurs and is continuing, then, and in each and
every such case, either the Trustee or the Holders of not less than 25% in
aggregate principal amount (or, if the Securities of any outstanding series
are Original Issue Discount Securities, the amount thereof accelerable under
this Section) of all Securities of any series then outstanding hereunder
except for any series of Securities the Principal of which shall have already
become due and payable (treated as a single class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the
entire principal amount (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.3) of
all Securities of any series then outstanding, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the
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Securities of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of each such series (or of all the Securities, as the case may be)
and the Principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such Principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
each such series to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section 7.7,
and if any and all Events of Default under the Indenture, other than the
non-payment of the Principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series that
have been accelerated (voting as a single class), by written notice to the
Company and to the Trustee, may waive all defaults with respect to all such
series (or with respect to all the Securities, as the case may be) and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
Principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the Principal thereof as shall be
due and payable as a result of such acceleration together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections 6.2, 6.7 and
9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.2) of the
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outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of Principal of or interest on any Security as specified in
clauses (a) or (b) of Section 6.1 or in respect of a covenant or provision of
this Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1 and 7.2(v),
the Holders of at least a majority in aggregate principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, however,
that the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant
to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal
amount of outstanding Securities of all such series affected shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
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(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal or interest, if any, on such Holder's Security on
or after the respective due dates expressed on such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.3 of Original Issue
Discount Securities) of Principal of, and accrued interest remaining unpaid
on, together with interest on overdue Principal of, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.7) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.7. Nothing herein contained shall be deemed to empower
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 Securities 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 6.10 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on
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account of Principal or interest, upon presentation of the several Securities
and coupons appertaining to such Securities in respect of which moneys have
been collected and noting thereon the payment, or issuing Securities of such
series and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series
for Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such Principal and interest or Yield
to Maturity, without preference or priority of Principal over
interest or Yield to Maturity, or of interest or Yield to Maturity
over Principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such
Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 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, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
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positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12 Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than the
Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not
apply to a suit by a Holder pursuant to Section 6.7 or a suit by Holders of
more than 10% in principal amount of the outstanding Securities of such
series.
SECTION 6.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.8, 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 6.14 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 an acquiescence therein. Every right and
remedy given by this Article 6 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.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. 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 Article 7.
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SECTION 7.2 Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(i) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any Officers'
Certificate, Opinion of Counsel (or both), 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 person or persons. The Trustee
need not investigate any fact or matter stated in the document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the faith
thereof;
(iii) the Trustee may act through its attorneys and agents,
custodians and nominees not regularly in its employ and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
might be incurred by it in compliance with such request, order or
direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it
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takes or omits to take in accordance with the direction of the Holders
in accordance with Section 6.5 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;
(vii) the Trustee may consult with counsel of its selection
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 to be taken by it hereunder in good
faith and in reliance thereon; and
(viii) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default,
the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then outstanding; provided,
however, that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require indemnity
satisfactory to it against such expenses or liabilities as a
condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
(a) "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
or bankers and payable upon demand; and
(b) "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
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Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities or for
monies paid over to the Company pursuant to the Indenture.
SECTION 7.5 Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and regulations
of any securities exchange on which such Securities are listed, and (ii) to
all Holders of Securities of such series in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such Default
shall have been cured or waived before the mailing or publication of such
notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after each
September 15, beginning with September 15, 1998, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such September 15, if required by Trust
Indenture Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses
shall include the reasonable compensation and expenses of the Trustee's
agents, counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee for, and hold the Trustee,
its officers, directors, employees and agents harmless against, any and all
loss, damage, claim or liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred by it without
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negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or a series thereof or the trusts hereunder and the
performance of its duties under this Indenture and the Securities, including
the costs and expenses of defending itself against or investigating any claim
or liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law. Such additional indebtedness shall be
a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of particular Securities or coupons, and the Securities are
hereby subordinated to such senior claim. If the Trustee renders services and
incurs expenses following an Event of Default under Section 6.1(d) or Section
6.1(e) hereof, the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
SECTION 7.8 Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any
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reason, the Company shall promptly appoint a successor Trustee with respect
thereto. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Securities of such series
may appoint a successor Trustee in respect of such Securities to replace the
successor Trustee appointed by the Company. If the successor Trustee with
respect to the Securities of any series does not deliver its written acceptance
required by the next succeeding paragraph of this Section 7.8 within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of the outstanding
Securities of such series may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.7, and subject to the payment of
any and all amounts then due and owing to the Trustee, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
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
the preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 7.
SECTION 7.10 Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a
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combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
SECTION 7.12 Right of Trustee in Capacity of Registrar or Paying
Agent. In the event that the Trustee is also acting in the capacity of Paying
Agent or Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article 7 shall also be afforded to the Trustee in
its capacity as Paying Agent or Registrar.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated
and delivered (other than destroyed, lost or wrongfully taken
Securities of such series that have been replaced or Securities of
such series that are paid pursuant to Section 4.1 or Securities of
such series for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as provided
in Section 8.5) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one
year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice
of redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or
a combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay the Principal of and interest on the Securities of such series
to maturity or redemption, as the case may be, and to pay all other
sums payable by it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
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(iii) With respect to the foregoing clause (i), only the
Company's obligations under Section 7.7 in respect of the Securities
of such series shall survive. With respect to the foregoing clause
(ii), only the Company's obligations in Sections 2.2 through 2.12,
4.2, 7.7, 7.8 and 8.5 in respect of the Securities of such series
shall survive until such Securities of such series are no longer
outstanding. Thereafter, only the Company's obligations in Sections
7.7 and 8.5 in respect of the Securities of such series shall survive.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations
under the Securities of such series and this Indenture with respect to
the Securities of such series except for those surviving obligations
specified above.
SECTION 8.2 Defeasance. Except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have
been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the Principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or
by which it is bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not
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occurred or (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above and (2) an Opinion of Counsel to the
effect that the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under
the UCC; and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series
have been complied with.
The Company's obligations in Sections 2.2 through 2.12, 4.1, 4.2,
7.7, 7.8 and 8.5 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.7 and 8.5 shall survive.
SECTION 8.3 Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Section 4.3 (or any other
specific covenant relating to such series provided for in a Board Resolution
or supplemental indenture pursuant to Section 2.3 which may by its terms be
defeased pursuant to this Section 8.3), and such omission shall be deemed not
to be an Event of Default under clauses (c) or (h) of Section 6.1, with
respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or
by which it is bound;
(iii) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to
no prior liens under the UCC and (B) such Holders will not
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recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to
federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and
defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to Section 8.5, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities of such series; but
such money need not be segregated from other funds except to the extent
required by law. The Company shall pay and indemnify the Trustee and its
officers, directors, agents and employees against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.1, 8.2 or 8.3 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Securities.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7, 8.1, 8.2
and 8.3, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any money held by them at
any time and not required to make payments hereunder and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York and once
in an Authorized Newspaper in London and, if applicable, in Luxembourg or such
other place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are listed or
mail to each Holder entitled to such money at such Holder's address (as set
forth in the Security Register) notice that such money remains unclaimed and
that after a date specified therein (which shall be at least 30 days from the
date of such publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money
shall cease.
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ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose;
(7) if allowed under applicable laws and regulations to
permit payment in the United States of Principal or interest on
Unregistered Securities or coupons, if any; or
(8) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections 6.4 and 6.7,
without prior notice to any Holders, the Company and the Trustee may amend
this Indenture and the Securities of any series with the written consent of
the Holders of a majority in principal amount of the outstanding Securities of
all series affected by such amendment (all such series voting as one class),
and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
56
<PAGE>
(i) extend the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the Principal thereof or the rate of
interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the
option of such Holder, or reduce the amount of the Principal of an
Original Issue Discount Security that would be due and payable upon
an acceleration of the maturity thereof pursuant to Section 6.2 or
the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Security or any premium
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the due date
therefor;
(ii) reduce the percentage in principal amount of
outstanding Securities of the relevant series the consent of whose
Holders is required for any such supplemental indenture, for any
waiver of compliance with certain provisions of this Indenture or
certain Defaults and their consequences provided for in this
Indenture;
(iii) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.2,
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 Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
57
<PAGE>
SECTION 9.3 Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting
Holder, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on
receipt by the Trustee of written consents from the requisite Holders of
outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of
any series affected entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then, notwithstanding the immediately
preceding paragraph, those Persons who were such Holders at such record date
(or their duly designated proxies) and only those Persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (iv) of Section 9.2, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent
Holder of a Security that evidences the same indebtedness as the Security of
the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee
58
<PAGE>
shall sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be obligated
to, execute any such amendment, supplement or waiver that affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
if to the Company:
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Facsimile No.: (212) 892-2608
Attention: General Counsel
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: 212-946-8161
Attention: Global Trust Services
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
59
<PAGE>
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London and, if applicable, in Luxembourg or such other place of publication
as may be required pursuant to the rules and regulations of any securities
exchange on which such Securities are listed, and by mailing to the Holders
thereof who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee and to Holders of Registered Securities by mailing to
such Holders at their addresses as they shall appear on the Security Register.
Notice mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall also
be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. Except
as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 10.2, it is duly given, whether
or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
60
<PAGE>
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes, and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The fact of the holding by any Holder
of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in respect of
one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such certificate
shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security
61
<PAGE>
Register for such series as the absolute owner of such Registered Security
(whether or not such Registered Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of
receiving payment of or on account of the Principal of and, subject to the
provisions of this Indenture, interest on such Registered Security and for all
other purposes; and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 10.7 Payment Date Other Than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force
and effect as if made on such date and no interest shall accrue in respect of
such payment for the period from and after such date.
SECTION 10.8 Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 10.10 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only and are not to be considered a part hereof
and shall in no way modify or restrict any of the terms and provisions hereof.
62
<PAGE>
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto by the holders thereof and as
part of the consideration for the issue of the Securities and the coupons
appertaining thereto.
SECTION 10.15 Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the Market
Exchange Rate on the day on which final unappealable judgment is entered,
unless such day is not a Business Day in The City of New York, in which case
the rate of exchange used shall be the Market Exchange Rate on the Business
Day preceding the day on which final unappealable judgment is entered and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due under this
Indenture.
SECTION 10.16 Moneys of Different Currencies To Be Segregated. The
Trustee shall segregate moneys, funds and accounts held by the Trustee
hereunder in one currency (or currency unit) from any moneys, funds or
accounts in any other currencies (or currency units), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 10.17 Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication.
63
<PAGE>
SECTION 10.18 Changes in Exhibits. At any time and from time to time,
the Company may substitute a new form, or add new forms, of the Exhibits
hereto. Such substitution shall be effective upon receipt by the Trustee of
such new form of Exhibit and a Board Resolution or Officers' Certificate
adopting such new form of Exhibit, and thereafter all references in this
Indenture to such Exhibit shall be deemed to refer to such new form of Exhibit.
64
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
(SEAL) DONALDSON, LUFKIN & JENRETTE, INC.,
Attest: as the Company
/s/ C. M. Power
- --------------------------- By: /s/ Charles J. Hendrickson
-----------------------------------
Name: Charles J. Hendrickson
Title: Senor Vice President/Treasurer
(SEAL) THE CHASE MANHATTAN BANK,
Attest: as Trustee
/s/ Gemmel Richards
- --------------------------- By: /s/ Victor Evans
-----------------------------------
Name: Victor Evans
Title: Second Vice President
65
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of September 1997, before me personally came
Charles J. Hendrickson, to me known, who, being by me duly sworn, did
depose and say that he is Sr. Vice Pres./Treas. of DONALDSON,
LUFKIN & JENRETTE, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
/s/ Richard Izzo
--------------------------------
Notary Public
[Notary's Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of September 1997, before me personally came
Victor Evans, to me known, who, being by me duly sworn, did depose and say
that he is Second Vice President of THE CHASE MANHATTAN BANK, one of the
corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
/s/ Margaret M. Price
---------------------------------
Notary Public
[Notary's Seal]
66
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE UNREGISTERED SECURITY]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, as of the date hereof, the above-captioned
Securities (i) are owned by persons that are not United States persons, (ii)
are owned by United States person(s) that (a) are foreign branches of a United
States financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the 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 issuer or the
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
in addition if the owner of the 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 Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, an estate the income of which is subject to United States
Federal income taxation regardless of its source, or a trust with respect to
the administration of which a court within the United States is able to
exercise primary supervision and one or more United States fiduciaries have
the authority to control all substantial decisions of the trust.
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
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on
A.1-1
<PAGE>
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this certification
to any interested party in such proceedings.
Dated: _______________, 19___
[To be dated on or after
________________ , 19 (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to
Receive Unregistered Security]
-----------------------------
(Authorized Signatory)
Name:
Title:
A.1-2
<PAGE>
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY ON THE EARLIER OF
THE FIRST ACTUAL PAYMENT OF INTEREST
OR THE DATE OF DELIVERY OF THE
OBLIGATION IN DEFINITIVE FORM]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations (Our "Member Organizations") with respect to $_____________
principal amount of the above-captioned Securities that such obligation (i) is
owned by persons that are not United States persons, (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the 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 Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that 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 Securities for purposes 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 herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Global Security 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, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
A.2-1
<PAGE>
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this certification
to any interested party in such proceedings.
Date: _________________, 19____
[To be dated no earlier than
the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[CEDEL]
By ________________________________
A.2-2
</TABLE>
<PAGE>
[FORM OF FIXED RATE NOTE]
No. FXR-
CUSIP:
ISIN:
Common Code:
FACE OF NOTE
DONALDSON, LUFKIN & JENRETTE, INC.
____ % NOTES DUE _______, _____
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.7 OF THE
INDENTURE (AS DEFINED HEREIN).
Issue (Title): ____ % Notes Due _____
Registered Principal Amount:
Type of Global Security
|_| DTC Global Security
Registered Holder
|_| Cede & Co.
Original Issue Date:
Maturity Date:
Specified Payment Currency
Interest:
Principal:
Exchange Rate Agent:
Subject to Redemption Prior to
Maturity Date
|_| No
|_| Yes
Initial Redemption Date:
Initial Redemption Percentage: _____ %
Annual Redemption Percentage
Reduction: _____ %
Optional Repayment Date(s):
Original Issue Discount Note
|_| No
|_| Yes
Issue Price: ______ %
Interest Category
|_| Fixed Rate Security
|_| Zero-Coupon Security
Interest Payment Dates: [September ___ and March
___ of each year, commencing _________ ___, _____]
Interest Rate: _____% Per Annum
[Interest on the Securities will be calculated on the basis of a 360-day year
consisting of twelve 30-day months and will be payable for six 30-day months
in arrears on each Interest Payment Date.]
Authorized Denominations (if other than minimum
denominations of U.S. $1,000 and integral multiples
thereof)
Minimum Denominations:
Additional Increments:
Other/Additional Provisions:
|_| No
|_| Yes
Addendum:
|_| Number of Addendums:_____
|_| There are no Addendums hereto
<PAGE>
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (together
with its successors and assigns, the "Company"), for value received, hereby
promises to pay to [Cede & Co.] or registered assignees, the principal sum of
[_______________] on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon
from the Original Issue Date specified above at the Interest Rate per annum
specified above until the principal hereof is paid or duly made available for
payment (except as provided below). The Company will pay interest in arrears
on each September __ and March __ (or such other Interest Payment Date(s)
specified above) commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date
(or any Redemption Date or Repayment Date) (these and certain other
capitalized terms used herein are defined on the reverse of this Note);
provided, however, that if the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date succeeding
the Original Issue Date to the registered holder of this Note on the Record
Date with respect to such second Interest Payment Date; and provided further,
that if an Interest Payment Date or the Maturity Date (or any Redemption Date
or Repayment Date) would fall on a day that is not a Business Day, then
payment of interest, premium, if any, or principal otherwise payable on such
date shall not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date such
payment was due, and no interest shall accrue with respect to such payment for
the period from and after the Interest Payment Date or the Maturity Date (or
any Redemption Date or Repayment Date) to the date of such payment on the next
succeeding Business Day.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any Redemption Date or Repayment Date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of such paying agent as the Company may determine maintained for
that purpose in the Borough of Manhattan, The City of New York (a "Paying
Agent"), or at the office or agency of such other Paying Agent as the Company
may determine.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other Provisions" apply to this Note as specified above, this Note shall be
subject to the terms set forth in such Addendum or such "Other Provisions."
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Original Issue Date,
until the principal hereof has been paid or duly made available for payment
(except as provided herein). The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date, will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
date 15 calendar days prior to an Interest Payment Date (whether or not a
Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any Redemption Date or Repayment
Date) will be payable to the person to whom the principal hereof shall be
payable.
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Unless otherwise specified on the face hereof, if the Specified
Payment Currency (the "Specified Currency") indicated on the face hereof is
other than U.S. dollars, any payment on this Note on an Interest Payment Date
or the Maturity Date (or any Redemption Date or Repayment Date) will be made
in U.S. dollars, as provided below, unless the holder hereof elects by written
request (which request shall also include appropriate wire transfer
instructions) to the Paying Agent at its corporate trust office in The City of
New York received on or prior to the Record Date relating to an Interest
Payment Date or at least 10 days prior to the Maturity Date (or any Redemption
Date or Repayment Date), as the case may be, to receive such payment in such
Specified Currency except as provided on the reverse hereof; provided, that
any U.S. dollar amount to be received by a holder of this Note will be based
on the highest bid quotation in The City of New York received by the Exchange
Rate Agent appointed by the Company and identified above (the "Exchange Rate
Agent"), at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) for the
purchase by the quoting dealer of such Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Notes having the same terms as this Note
(including Original Issue Date) scheduled to receive U.S. dollar payment and
at which the applicable dealer commits to execute a contract; provided,
further, that if such bid quotations are not available, such payments shall be
made in such Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments. The holder hereof
may elect to receive payment in such Specified Currency for all such payments
and need not file a separate election for each such payment, and such election
shall remain in effect until revoked by written notice to the Paying Agent at
its corporate trust office in The City of New York received on a date prior to
the Record Date for the relevant Interest Payment Date or at least 10 calendar
days prior to the Maturity Date (or any Redemption Date or Repayment Date), as
the case may be; provided, that such election is irrevocable as to the next
succeeding payment to which it relates; if such election is made as to full
payment on this Note, such election may thereafter be revoked so long as the
Paying Agent is notified of the revocation within the time period set forth
above.
If the Specified Currency indicated on the face hereof is U.S.
dollars, payment of the principal of and premium, if any, and interest on this
Note will be made in such coin or currency of the United States as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payments of interest, other than interest due at maturity (or
any Redemption Date or Repayment Date) will be made by United States dollar
check mailed to the address of the person entitled thereto as such address
shall appear in the Note register.
A holder of U.S. $5,000,000 (or, if the Specified Currency specified
above is other than U.S. dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity (or any Redemption Date or Repayment Date), by
wire transfer of immediately available funds to an account within the United
States maintained by the holder of this Note if appropriate wire transfer
instructions in writing have been received by the Paying Agent not less than
10 days prior to the applicable Interest Payment Date; provided, however,
that, unless
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alternative arrangements are made, any such payments to be made in a Specified
Currency other than U.S. dollars shall be made to an account at a bank outside
the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
DONALDSON, LUFKIN & JENRETTE, INC.
By:___________________________
Title:
By:___________________________
Title:
[SEAL]
Attest:
By:___________________________
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee and Authenticating Agent
By:___________________________
Authorized Signatory
DATED:
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<PAGE>
REVERSE OF NOTE
DONALDSON, LUFKIN & JENRETTE, INC.
___% NOTES DUE ___
This Note is one of a duly authorized issue of Debt Securities having
maturities of nine months or more from the date of issue (the "Notes") of the
Company. The Notes are issuable under an indenture, dated as of ________, 1997
(the "Indenture") between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Company, the Trustee and holders of
the Notes and the terms upon which the Notes are to be authenticated and
delivered. The Chase Manhattan Bank has been appointed Authenticating Agent
and Calculation Agent (the "Authenticating Agent" and "Calculation Agent",
respectively, which terms include any successor authenticating agent or
calculation agent, as the case may be) with respect to the Notes, and The
Chase Manhattan Bank at its corporate trust office in The City of New York has
been appointed the registrar and Paying Agent with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest
rate formulas, issue dates, maturity dates, or otherwise, all as provided in
the Indenture. To the extent not inconsistent herewith, the terms of the
Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.
$1,000 or the minimum Authorized Denomination (provided that any remaining
principal amount hereof shall be at least U.S. $1,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until
the Redemption Price is 100% of unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for
the unredeemed portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
This Note will be subject to repayment by the Company at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining
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<PAGE>
principal amount hereof shall be at least U.S. $1,000 or such minimum
Authorized Denomination), at a repayment price equal to 100% of the unpaid
principal amount to be repaid, together with unpaid interest accrued thereon to
the date fixed for repayment (each, a "Repayment Date"). For this Note to be
repaid, this Note must be received, together with the form hereon entitled
"Option to Elect Repayment" duly completed, by the Trustee at its corporate
trust office not more than 60 nor less than 30 calendar days prior to the
Repayment Date. Exercise of such repayment option by the holder hereof will be
irrevocable. In the event of repayment of this Note in part only, a new Note of
like tenor for the unrepaid portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as
the case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued
as of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause the yield on the
Note to be constant (computed using the "Constant Yield" method in accordance
with the rules under the Internal Revenue Code of 1986, as amended). The
constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption
that the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or earlier
Redemption Date or Repayment Date), as the case may be. Interest payments for
this Note will be computed and paid on the basis of a 360-day year of twelve
30-day months.
This Note is unsecured and ranks pari passu with all other unsecured
and unsubordinated indebtedness of the Company.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in
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<PAGE>
denominations of U.S. $1,000 or any integral multiple of U.S. $1,000 in excess
thereof, unless otherwise specified on the face hereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in the minimum Authorized Denomination specified on the face hereof or any
amount in excess thereof which is an integral multiple thereof.
In case a Default or an Event of Default with respect to the Notes,
as defined in the Indenture, shall have occurred and be continuing, the
principal hereof and the interest accrued hereon, if any, may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that, without prior
notice to any holders of Notes, the Company and the Trustee may amend the
Indenture and the Notes of any series with the written consent of the holders
of a majority in principal amount of the outstanding Notes of all series
affected by such amendment (all such series voting as one class), and the
holders of a majority in principal amount of the outstanding Notes of all
series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company with any
provision of the Indenture or the Notes of such series; provided that, without
the consent of each holder of the Notes of each series affected thereby, an
amendment or waiver, including a waiver of past defaults, may not: (i) extend
the stated maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such holder's Note, or reduce the principal amount
thereof or the rate of interest thereon (including any amount in respect of
original issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the option of
such holder, or reduce the amount of the principal of an Original Issue
Discount Note that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Note of such series or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due
date therefor; (ii) reduce the percentage in principal amount of outstanding
Notes of the relevant series the consent of whose holders is required for any
such supplemental indenture, for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences
provided for in the Indenture; (iii) waive a Default in the payment of
principal of or interest on any Note of such holder; or (iv) modify any of the
provisions of the Indenture governing supplemental indentures with the consent
of noteholders except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the holder of each outstanding Note affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Note affected. Upon any
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<PAGE>
such waiver, such Default shall cease to exist, and any Event of Default with
respect to the Notes of such series arising therefrom shall be deemed to have
been cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Except as set forth below, if a Specified Currency (other than the
U.S. dollar) in which this Note is denominated or payable (i) ceases to be
recognized by the government of the country which issued such currency or for
the settlement of transactions by public institutions of or within the
international banking community, (ii) is a currency unit and such currency
unit ceases to be used for the purposes for which it was established, or (iii)
is not available to the Company for making payments thereof due to the
imposition of exchange controls or other circumstances beyond the control of
the Company, in each such case as determined in good faith by the Company,
then with respect to each date for the payment of principal of and interest,
if any, on this Note denominated or payable in such Specified Currency
occurring after the last date on which such Specified Currency was so used
(the "Conversion Date"), the U.S. dollar or such Foreign Currency or currency
unit as may be specified by the Company (the "Substitute Currency") shall
become the currency of payment for use on each such payment date (but such
Specified Currency shall, at the Company's election, resume being the currency
of payment on the first such payment date preceded by 15 Business Days during
which the circumstances which gave rise to the change of currency no longer
prevail, in each case as determined in good faith by the Company). The
Substitute Currency amount to be paid by the Company to the Trustee and by the
Trustee or any Paying Agent to the Holder of this Note with respect to such
payment date shall be the Currency Equivalent or Currency Unit Equivalent
(each as defined below) of the Specified Currency as determined by the
Exchange Rate Agent (which determination shall be delivered in writing to the
Trustee not later than the fifth Business Day prior to the applicable payment
date) as of the Conversion Date or, if later, the date most recently preceding
the payment date in question on which such determination is possible of
performance, but not more than 15 days before such payment date (such
Conversion Date or date preceding a payment date as aforesaid being called the
"Valuation Date"). Any payment in a Substitute Currency under the
circumstances described above will not constitute an Event of Default.
If, pursuant to the treaty establishing the European Communities, as
amended by the treaty on European Union (the "Treaty"), one or more of the
Austrian schilling, Belgian franc, Danish krone, Dutch guilder, Finish markka,
French franc, German mark, Greek drachma, Irish pound, Italian lire,
Luxembourg franc, Pound sterling, Portuguese escudo, Spanish peseta or Swedish
krona is replaced by the ECU as a currency in its own right, then all payments
in respect of this Note required to be made in any such currency shall be
effected in ECU as a currency in its own right in conformity with legally
applicable measures taken pursuant to, or by virtue of, the Treaty and such
payment will not constitute an Event of Default. If the Specified Currency is
the ECU and if the ECU is no longer used as either the unit of account of the
European Communities or a currency in its own right, replacing all or some of
the currencies of the member countries of the European Communities, then the
Substitute Currency shall be a component currency of the ECU or U.S. dollars.
If changes are made by the European Communities to the nature or composition
of the ECU, references herein to the ECU shall be construed as references to
the ECU as so changed. References
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<PAGE>
herein to the ECU as a currency in its own right shall be construed as
including references to the Euro.
The "Currency Equivalent" shall be determined by the Exchange Rate
Agent as of each Valuation Date and shall be obtained by converting the
Specified Currency (unless such Specified Currency is a currency unit) into
the Substitute Currency at the Market Exchange Rate (as defined below) on the
Valuation Date.
The "Currency Unit Equivalent" shall be determined by the Exchange
Rate Agent as of each Valuation Date and shall be the sum obtained by adding
together the results obtained by converting the Specified Amount of each
initial Component Currency into the Substitute Currency at the Market Exchange
Rate on the Valuation Date for such Component Currency.
All determinations referred to above made by the Company or its
agents shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on holders of Notes.
So long as this Note shall be outstanding, the Company will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Company may designate other agencies for the payment of said
principal, premium, if any, and interest at such place or places (subject to
applicable laws and regulations) as the Company may decide. So long as there
shall be any such agency, the Company shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place,
and rate, and in the coin or currency, herein and in the Indenture prescribed
unless otherwise agreed between the Company and the registered holder of this
Note.
Upon due presentment for registration of transfer of this Note, a new
Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company or any agent of the Company, the registrar of the Notes or the
Trustee may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Registrar, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or the interest on, this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in
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respect of the Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York (without regard to the
conflicts of law principles thereof).
As used herein:
"Business Day" means any day that is not a Saturday or Sunday and
that is not a day on which banking institutions are generally authorized or
obligated by law, regulation or executive order to close in The City of New
York and (i) with respect to Notes denominated in a Specified Currency other
than U.S. dollars or ECU, such day that is not a day on which banking
institutions are generally authorized or obligated by law, regulation or
executive order to close in the principal financial center of the country of
the Specified Currency, or (ii) with respect to Notes denominated in ECU, a
day that is a non-ECU clearing day as determined by the ECU Banking
Association in Paris;
"Component Currency" means any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including
without limitation ECU;
"Market Exchange Rate" means, as of any date, for any currency or
currency unit the noon U.S. dollar buying rate for that currency or currency
unit, as the case may be, for cable transfers quoted in New York City on such
date as certified for customs purposes by the Federal Reserve Bank of New
York. If such rates are not available for any reason with respect to one or
more currencies or currency units for which an Exchange Rate is required, the
Exchange Rate Agent will use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City or in the country of issue of the currency or currency unit in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate 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 will be that upon which a nonresident issuer of
securities designated in such currency or currency unit would, as determined
in its sole discretion and without liability on the part of the Exchange Rate
Agent, purchase such currency or currency unit in order to make payments in
respect of such securities;
"Specified Amount" of a Component Currency means the number of units
(including decimals) which such Component Currency represented in the relevant
currency unit, on the Conversion Date or, if ECU and such currency unit is
being used for settlement of transactions by public institutions of or within
the European Communities or was so used after the Conversion Date, the
Valuation Date or the last date the currency unit was so used, whichever is
later. If after such
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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 such 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 such date
any Component Currency shall be divided into two or more currencies, the
Specified Amount of such Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of which, at the Market
Exchange Rate of such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former Component Currency and
such amounts shall thereafter be Specified Amounts an such currencies shall
thereafter be Component Currencies;
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and
All other terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT-_________Custodian________
(Cust) (Minor)
Under Uniform Gifts to Minors Act_________
(State)
Additional abbreviations may also be used though not in the above
list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- -------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Signature____________________________
Signature Guarantee____________________
Dated:_______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Issuer to repay the
within Note (or portion thereof specified below) pursuant to its terms at a
price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned, at
- ------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof (which shall be increments of $1,000 or such
minimum Authorized Denomination indicated on the face hereof) which the holder
elects to have repaid: __________________; and specify the denomination or
denominations (which shall not be less than $1,000 or such minimum Authorized
Denomination) of the Notes to be issued to the holder for the portion of the
within Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid):___________________.
Dated:______________________ _________________________________
NOTICE: The signature on this Option to Elect Repayment must correspond with
the name as written upon the face of the within Note in every particular
without alteration or enlargement.
14
<PAGE>
[FORM OF FLOATING RATE NOTE]
No. FXR-
CUSIP:
ISIN:
Common Code:
FACE OF NOTE
DONALDSON, LUFKIN & JENRETTE, INC.
____ NOTES DUE _______, _____
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.7 OF THE
INDENTURE (AS DEFINED HEREIN).
Issue (Title): ____ % Notes Due _____
Registered Principal Amount:
Type of Global Security
|_| DTC Global Security
Registered Holder
|_| Cede & Co.
Original Issue Date:
Maturity Date:
Specified Payment Currency
Interest:
Principal:
Exchange Rate Agent:
Subject to Redemption Prior to
Maturity Date
|_| No
|_| Yes
Initial Redemption Date:
Initial Redemption Percentage: _____ %
Annual Redemption Percentage
Reduction: _____ %
Optional Repayment Date(s):
Interest Rate Basis or Bases:
If LIBOR:
|_| LIBOR Reuters
|_| LIBOR Telerate
Index Currency:
Index Maturity:
Initial Interest Rate: _____%
Interest Payment Date(s):
Spread (plus or minus): ____%
|_| Plus
|_| Minus
Spread Multiplier: _____%
Initial Interest Reset Date:
<PAGE>
Minimum Interest Rate: ____%
Maximum Interest Rate: ____%
Interest Reset Date(s):
Interest Category:
|_| Regular Floating Rate Note
|_| Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Rate Interest: _____ %
|_| Inverse Floating Rate Note
Fixed Interest Rate:
|_| Original Issue Discount Note
Issue Price: ______ %
Authorized Denominations (if other than minimum
denominations of U.S. $1,000 and integral
multiples thereof)
Minimum Denominations:
Additional Increments:
Other/Additional Provisions:
|_| No
|_| Yes
Addendum:
|_| There are no Addendums hereto
|_| Number of Addendums: __________
2
<PAGE>
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (together
with its successors and assigns, the "Company"), for value received, hereby
promises to pay to [Cede & Co.], or registered assignees, the principal sum of
[_____________] on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon
from the Original Issue Date specified above at a rate per annum equal to the
Initial Interest Rate specified above until the first Interest Reset Date next
succeeding the Original Issue Date specified above, and thereafter at a rate
per annum determined in accordance with the provisions specified on the
reverse hereof until the principal hereof is paid or duly made available for
payment (except as provided below). The Company will pay interest in arrears
on each Interest Payment Date (as specified above) commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date (or any Redemption Date or Repayment Date) (these and
certain other capitalized terms used herein are defined on the reverse of this
Note); provided, however, that if the Original Issue Date occurs between a
Record Date, as defined below, and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date succeeding
the Original Issue Date to the registered holder of this Note on the Record
Date with respect to such second Interest Payment Date; and provided further,
that (i) if an Interest Payment Date (other than the Maturity Date (or any
Redemption Date or Repayment Date)) would fall on a day that is not a Business
Day, such Interest Payment Date shall be the following day that is a Business
Day, except that if the Interest Rate Basis specified above is LIBOR and such
next Business Day falls in the next calendar month, the Interest Payment Date
(other than the Maturity Date (or any Redemption Date or Repayment Date))
shall be the immediately preceding day that is a Business Day, and (ii) if the
Maturity Date (or any Redemption Date or Repayment Date) falls on a day that
is not a Business Day, the required payment of principal, premium, if any, and
interest shall be made on the next succeeding Business Day, in each case with
the same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and
after the Interest Payment Date or the Maturity Date (or any Redemption Date
or Repayment Date) to the date of such payment on the next succeeding Business
Day.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any Redemption Date or Repayment Date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of such paying agent as the Company may determine maintained for
that purpose in the Borough of Manhattan, The City of New York (a "Paying
Agent"), or at the office or agency of such other Paying Agent as the Company
may determine.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other Provisions" apply to this Note as specified above, this Note shall be
subject to the terms set forth in such Addendum or such "Other Provisions."
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Original Issue Date,
until the principal hereof has been paid or duly made available for payment
(except as provided herein). The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date, will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business
3
<PAGE>
on the date 15 calendar days prior to an Interest Payment Date (whether or not
a Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any Redemption Date or Repayment
Date) will be payable to the person to whom the principal hereof shall be
payable.
Unless otherwise specified on the face hereof, if the Specified
Payment Currency (the "Specified Currency") indicated on the face hereof is
other than U.S. dollars, any payment on this Note on an Interest Payment Date
or the Maturity Date (or any Redemption Date or Repayment Date) will be made
in U.S. dollars, as provided below, unless the holder hereof elects by written
request (which request shall also include appropriate wire transfer
instructions) to the Paying Agent at its corporate trust office in The City of
New York received on or prior to the Record Date relating to an Interest
Payment Date or at least 10 days prior to the Maturity Date (or any Redemption
Date or Repayment Date), as the case may be, to receive such payment in such
Specified Currency except as provided on the reverse hereof; provided, that
any U.S. dollar amount to be received by a holder of this Note will be based
on the highest bid quotation in The City of New York received by the Exchange
Rate Agent appointed by the Company and identified above (the "Exchange Rate
Agent"), at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) for the
purchase by the quoting dealer of such Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Notes having the same terms as this Note
(including Original Issue Date) scheduled to receive U.S. dollar payment and
at which the applicable dealer commits to execute a contract; provided,
further, that if such bid quotations are not available, such payments shall be
made in such Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments. The holder hereof
may elect to receive payment in such Specified Currency for all such payments
and need not file a separate election for each such payment, and such election
shall remain in effect until revoked by written notice to the Paying Agent at
its corporate trust office in The City of New York received on a date prior to
the Record Date for the relevant Interest Payment Date or at least 10 calendar
days prior to the Maturity Date (or any Redemption Date or Repayment Date), as
the case may be; provided, that such election is irrevocable as to the next
succeeding payment to which it relates; if such election is made as to full
payment on this Note, such election may thereafter be revoked so long as the
Paying Agent is notified of the revocation within the time period set forth
above.
If the Specified Currency indicated on the face hereof is U.S.
dollars, payment of the principal of and premium, if any, and interest on this
Note will be made in such coin or currency of the United States as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payments of interest, other than interest due at maturity (or
any Redemption Date or Repayment Date) will be made by United States dollar
check mailed to the address of the person entitled thereto as such address
shall appear in the Note register.
A holder of U.S. $5,000,000 (or, if the Specified Currency specified
above is other than U.S. dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
4
<PAGE>
than interest due at maturity (or any Redemption Date or Repayment Date), by
wire transfer of immediately available funds to an account within the United
States maintained by the holder of this Note if appropriate wire transfer
instructions in writing have been received by the Paying Agent not less than
10 days prior to the applicable Interest Payment Date; provided, however,
that, unless alternative arrangements are made, any such payments to be made
in a Specified Currency other than U.S. dollars shall be made to an account at
a bank outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
DONALDSON, LUFKIN & JENRETTE, INC.
By:______________________________
Title:
By:______________________________
Title:
[SEAL]
Attest:
By:___________________________
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee and Authenticating Agent
By:____________________________
Authorized Signatory
DATED:
6
<PAGE>
REVERSE OF NOTE
DONALDSON, LUFKIN & JENRETTE, INC.
____ % NOTES DUE _______, _____
This Note is one of a duly authorized issue of Debt Securities having
maturities of nine months or more from the date of issue (the "Notes") of the
Company. The Notes are issuable under an indenture, dated as of ___________,
1997 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Company, the Trustee and
holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The Chase Manhattan Bank has been appointed
Authenticating Agent and Calculation Agent (the "Authenticating Agent" and
"Calculation Agent", respectively, which terms include any successor
authenticating agent or calculation agent, as the case may be) with respect to
the Notes, and The Chase Manhattan Bank at its corporate trust office in The
City of New York has been appointed the registrar and Paying Agent with
respect to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Indenture. To the extent not inconsistent
herewith, the terms of the Indenture are hereby incorporated by reference
herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.
$1,000 or the minimum Authorized Denomination (provided that any remaining
principal amount hereof shall be at least U.S. $1,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until
the Redemption Price is 100% of unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for
the unredeemed portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
This Note will be subject to repayment by the Company at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in
7
<PAGE>
increments of U.S. $1,000 or the minimum Authorized Denomination (provided
that any remaining principal amount hereof shall be at least U.S. $1,000 or
such minimum Authorized Denomination), at a repayment price equal to 100% of
the unpaid principal amount to be repaid, together with unpaid interest
accrued thereon to the date fixed for repayment (each, a "Repayment Date").
For this Note to be repaid, this Note must be received, together with the form
hereon entitled "Option to Elect Repayment" duly completed, by the Trustee at
its corporate trust office not more than 60 nor less than 30 calendar days
prior to the Repayment Date. Exercise of such repayment option by the holder
hereof will be irrevocable. In the event of repayment of this Note in part
only, a new Note of like tenor for the unrepaid portion hereof and otherwise
having the same terms as this Note shall be issued in the name of the holder
hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as
the case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued
as of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause the yield on the
Note to be constant (computed using the "Constant Yield" method in accordance
with the rules under the Internal Revenue Code of 1986, as amended). The
constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption
that the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is
specified on the face hereof as a "Floating Rate/Fixed Rate
Note" or an "Inverse Floating Rate Note", this Note shall be
designated as a "Regular Floating Rate Note" and, except as
set forth below or on the face hereof, shall bear interest
at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread,
if any, and/or (b) multiplied by the Spread Multiplier, if
any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at
which interest on
8
<PAGE>
this Note shall be payable shall be reset as of each
Interest Reset Date specified on the face hereof; provided,
however, that the interest rate in effect for the period, if
any, from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is
specified on the face hereof as a "Floating Rate/Fixed Rate
Note", then, except as set forth below or on the face
hereof, this Note shall bear interest at the rate determined
by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the Rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset
Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date
to the Initial Interest Reset Date shall be the Initial
Interest Rate and (z) the interest rate in effect for the
period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be
the Fixed Interest Rate specified on the face hereof or, if
no such Fixed Interest Rate is specified, the interest rate
in effect hereon on the day immediately preceding the Fixed
Rate Commencement Date.
(iii) If the Interest Category of this Note is
specified on the face hereof as an "Inverse Floating Rate
Note", then, except as set forth below or on the face
hereof, this Note shall bear interest at the Fixed Interest
Rate minus the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus
the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any; provided, however, that, unless
otherwise specified on the face hereof, the interest rate
thereon shall not be less than zero. Commencing on the
Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each
Interest Reset Date; provided, however, that the interest
rate in effect for the period, if any, from the Original
Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is an applicable Interest Rate
basis and such Business Day falls in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate and Prime Rate will be the second Business Day
preceding such Interest Reset Date. The Interest Determination Date pertaining
to an Interest Reset Date for Notes bearing interest calculated by reference
to LIBOR shall be the second London Business Day preceding such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to the Treasury Rate shall be
the day of the week in which such Interest Reset Date falls on which Treasury
bills normally would be auctioned; provided, however, that if as a result of a
legal holiday an auction is held on the Friday of the week preceding such
Interest Reset Date,
9
<PAGE>
the related Interest Determination Date shall be such preceding Friday; and
provided, further, that if an auction shall fall on any Interest Reset Date,
then the Interest Reset Date shall instead be the first Business Day following
the date of such auction.
The "Calculation Date" pertaining to any Interest Determination Date
will be the earlier of (i) the tenth day after such Interest Determination
Date or if such day is not a Business Day, the next succeeding Business Day or
(ii) the Business Day preceding the applicable Interest Payment Date or
Maturity Date, as the case may be.
Determination of CD Rate. If the Interest Rate Basis specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)"), under the heading "CDs (Secondary Market)," or,
if not so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate
on such Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication (the
"Composite Quotations") under the heading "Certificates of Deposit." If such
rate is not yet published in either H.15(519) or the Composite Quotations by
3:00 P.M., New York City time, on such Calculation Date, then the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the secondary market offered rates as of
10:00 A.M., New York City time, on such Interest Determination Date, for
negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is
representative for a single transaction in that market at that time as quoted
by three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the rate of interest in effect
for the applicable period will be the same as the CD Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of Commercial Paper Rate. If the Interest Rate Basis
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) of
the rate on such date for commercial paper having the Index Maturity specified
on the face hereof, as such rate shall be published in H.15(519) under the
heading "Commercial Paper," or if not so published prior to 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Commercial Paper Rate shall be the Money Market Yield
of the rate on such Interest Determination Date for commercial paper of the
Index Maturity specified on the face hereof as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity
10
<PAGE>
of 30 or 90 days, respectively). If by 3:00 P.M., New York City time, on such
Calculation Date, such rate is not yet available in either H.15(519) or
Composite Quotations, then the Commercial Paper Rate shall be calculated by
the Calculation Agent and shall be the Money Market Yield corresponding to the
arithmetic mean of the offered rates as of approximately 11:00 A.M., New York
City time, on such Interest Determination Date for commercial paper of the
Index Maturity specified on the face hereof, placed for an industrial issuer
whose bond rating is ["AA",] or the equivalent, from a nationally recognized
rating agency as quoted by three leading dealers in commercial paper in The
City of New York selected by the Calculation Agent; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the rate of interest in effect for the applicable
period will be the same as the Commercial Paper Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
"Money Market Yield" shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360
-------------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Federal Funds Rate. If the Interest Rate Basis
specified on the face hereof is the Federal Funds Rate, the Federal Funds Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate will be the rate
on such Interest Determination Date as published in Composite Quotations under
the heading "Federal Funds/Effective Rate." If such rate is not published in
either H.15(519) or the Composite Quotations by 3:00 P.M., New York City time,
on such Calculation Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds as of 9:00 A.M., New York City time, on such Interest Determination Date
arranged by three leading brokers in Federal funds transactions in The City of
New York selected by the Calculation Agent; provided, however, that if the
brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate with respect to such
Interest Determination Date will be the same as the Federal Funds Rate in
effect for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of LIBOR. If the Interest Rate Basis specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined on
each Interest Determination Date as follows:
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<PAGE>
(i) With respect to an Interest Determination Date relating
to a LIBOR Note, LIBOR will be either: (A) if "LIBOR Telerate" is
specified on the face hereof or if no source for LIBOR is specified
on the face hereof, the rate for deposits in the London interbank
market in the Index Currency (as defined below) having the Index
Maturity designated on the face hereof commencing on the second
London Business Day immediately following such Interest Determination
Date that appears on the Designated LIBOR Page (as defined below) as
of 11:00 A.M., London time, on such Interest Determination Date, or
(B) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated
LIBOR Page by its terms provides only for a single rate, in which
case such single rate shall be used) for deposits in the London
interbank market in the Index Currency having the Index Maturity
designated on the face hereof and commencing on the second London
Business day immediately following such Interest Determination Date
that appear on the Designated LIBOR Page as of 11:00 A.M., London
time, on such Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page. If no rate appears on the
Designated LIBOR Page (or, in the case of clause (i)(B) above, if the
Designated LIBOR Page by its terms provides for more than a single
rate but fewer than two offered rates appear on such Page), LIBOR in
respect of such Interest Determination Date will be determined as if
the parties had specified the rate described in clause (ii) below.
(ii) With respect to an Interest Determination Date relating
to a LIBOR Note to which the last sentence of clause (i) above
applies, the Calculation Agent will request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the
Index Currency for the period of the Index Maturity designated on the
face hereof commencing on the second London Business Day immediately
following such Interest Determination Date to prime banks in the
London interbank market at approximately 11:00 A.M., London time on
such Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in
such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date will
be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial
Center (as defined below), on such Interest Determination Date for
loans made in the Index Currency to leading European banks having the
Index Maturity designated on the face hereof commencing on the second
London Business Day immediately following such Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time by
three major banks in such Principal Financial Center selected by the
Calculation Agent; provided, however, that if the banks so selected
by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR with respect to such Interest Determination Date will
be the same as LIBOR in effect for the immediately preceding Interest
Reset Period (or if there was no such Interest Reset Period, the rate
of interest payable hereon shall be the Initial Interest Rate).
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"Index Currency" means the currency (including currency units and
composite currencies) specified as Index Currency on the face hereof as the
currency with respect to which LIBOR shall be calculated. If no such currency
is specified as Index Currency on the face hereof, the Index Currency shall be
U.S. dollars.
"Designated LIBOR Page" means the display on Page 3750 of the Dow
Jones Telerate Service for the purpose of displaying the London interbank
offered rates of major banks for the applicable Index Currency (or such other
page as may replace that page on that service for the purpose of displaying
such rates), unless "LIBOR Reuters" is designated on the face hereof, in which
case the Designated LIBOR Page shall be the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank offered
rates of major banks for the applicable Index Currency.
"Principal Financial Center" means the capital city of the country of
the specified Index Currency, except that with respect to U.S. dollars and the
European Currency Unit (the "ECU"), the Principal Financial Center shall be
The City of New York and Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
set forth in H.15(519) for such date opposite the caption "Bank Prime Loan."
If such rate is not yet published by 9:00 A.M. New York City time, on the
Calculation Date, the Prime Rate for such Interest Determination Date will be
the arithmetic mean of the rates of interest publicly announced by each bank
named on the display designated as page "NYMF" on the Reuters Monitor Money
Rate Service (or such other page as may replace the NYMF page on such service
for the purpose of displaying the prime rate or base lending rate of major New
York City banks) (the "Reuters Screen NYMF Page") as such bank's prime rate or
base lending rate as in effect for such Interest Determination Date as quoted
on the Reuters Screen NYMF Page on such Interest Determination Date, or, if
fewer than four such rates appear on the Reuters Screen NYMF Page for such
Interest Determination Date, the rate shall be the arithmetic mean of the
prime rate quoted on the basis of the actual number of days in the year
divided by 360 as of the close of business on such Interest Determination Date
by at least two of the three major money center banks in The City of New York
selected by the Calculation Agent from which quotations are requested. If
fewer than two quotations are provided, the Prime Rate shall be calculated by
the Calculation Agent and shall be determined as the arithmetic mean on the
basis of the prime rates in The City of New York by the appropriate number of
substitute banks or trust companies organized and doing business under the
laws of the United States, or any State thereof, in each case having total
equity capital of at least U.S. $500 million and being subject to supervision
or examination by Federal or State authority, selected by the Calculation
Agent to quote such rate or rates.
Determination of Treasury Rate. If the Interest Rate Basis specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate applicable to the most recent auction of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury
Bills--auction average (investment)," or if not
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so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the auction average rate on
such Interest Determination Date (expressed as a bond equivalent, on the basis
of a year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the Index
Maturity specified on the face hereof are not published or reported as
provided above by 3:00 P.M., New York City time, on such Calculation Date or
if no such auction is held in a particular week, then the Treasury Rate shall
be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) calculated using the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New York
City time, on such Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting bid rates as
mentioned in this sentence, the Treasury Rate for such Interest Reset Date
will be the same as the Treasury Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any Redemption
Date or Repayment Date), as the case may be. Accrued interest hereon shall be
an amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding the
interest factor calculated for each day in the period for which interest is
being paid. The interest factor for each such date shall be computed by
dividing the interest rate applicable to such day by 360 if the Interest Rate
Basis is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or
LIBOR, as specified on the face hereof, or by the actual number of days in the
year if the Interest Rate Basis is the Treasury Rate, as specified on the face
hereof. All percentages resulting from any calculation of the rate of interest
on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). Unless otherwise specified on the
face hereof, the rate with respect to each Interest Rate Basis will be
determined in accordance with the applicable provisions below. Except as set
forth above or on the face hereof, the interest
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<PAGE>
rate in effect on any Interest Reset Date will be the applicable rate as reset
on such date and the interest rate applicable to any other day will be the
interest rate from the immediately preceding Interest Reset Date (or, if none,
the Initial Interest Rate).
This Note is unsecured and ranks pari passu with all other unsecured
and unsubordinated indebtedness of the Company.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
or any integral multiple of U.S. $1,000 in excess thereof, unless otherwise
specified on the face hereof. If this Note is denominated in a Specified
Currency other than U.S. dollars, then, unless a higher minimum denomination
is required by applicable law, it is issuable only in the minimum Authorized
Denomination specified on the face hereof or any amount in excess thereof
which is an integral multiple thereof.
In case a Default or an Event of Default with respect to the Notes,
as defined in the Indenture, shall have occurred and be continuing, the
principal hereof and the interest accrued hereon, if any, may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that, without prior
notice to any holders of Notes, the Company and the Trustee may amend the
Indenture and the Notes of any series with the written consent of the holders
of a majority in principal amount of the outstanding Notes of all series
affected by such amendment (all such series voting as one class), and the
holders of a majority in principal amount of the outstanding Notes of all
series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company with any
provision of the Indenture or the Notes of such series; provided that, without
the consent of each holder of the Notes of each series affected thereby, an
amendment or waiver, including a waiver of past defaults, may not: (i) extend
the stated maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such holder's Note, or reduce the principal amount
thereof or the rate of interest thereon (including any amount in respect of
original issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the option of
such holder, or reduce the amount of the principal of an Original Issue
Discount Note that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Note of such series or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due
date therefor; (ii) reduce the percentage in principal amount of outstanding
Notes of the relevant series the consent of whose holders is required for any
such supplemental indenture, for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences
provided for in the Indenture; (iii) waive a Default in the payment of
principal of or interest on any Note of such holder; or (iv) modify any of the
provisions of the Indenture governing supplemental indentures with the consent
of noteholders except to increase any such percentage or to provide that
certain other provisions of the Indenture
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<PAGE>
cannot be modified or waived without the consent of the holder of each
outstanding Note affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Note affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default with respect to
the Notes of such series arising therefrom shall be deemed to have been cured,
for every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Except as set forth below, if a Specified Currency (other than the
U.S. dollar) in which this Note is denominated or payable (i) ceases to be
recognized by the government of the country which issued such currency or for
the settlement of transactions by public institutions of or within the
international banking community, (ii) is a currency unit and such currency
unit ceases to be used for the purposes for which it was established, or (iii)
is not available to the Company for making payments thereof due to the
imposition of exchange controls or other circumstances beyond the control of
the Company, in each such case as determined in good faith by the Company,
then with respect to each date for the payment of principal of and interest,
if any, on this Note denominated or payable in such Specified Currency
occurring after the last date on which such Specified Currency was so used
(the "Conversion Date"), the U.S. dollar or such Foreign Currency or currency
unit as may be specified by the Company (the "Substitute Currency") shall
become the currency of payment for use on each such payment date (but such
Specified Currency shall, at the Company's election, resume being the currency
of payment on the first such payment date preceded by 15 Business Days during
which the circumstances which gave rise to the change of currency no longer
prevail, in each case as determined in good faith by the Company). The
Substitute Currency amount to be paid by the Company to the Trustee and by the
Trustee or any Paying Agent to the Holder of this Note with respect to such
payment date shall be the Currency Equivalent or Currency Unit Equivalent
(each as defined below) of the Specified Currency as determined by the
Exchange Rate Agent (which determination shall be delivered in writing to the
Trustee not later than the fifth Business Day prior to the applicable payment
date) as of the Conversion Date or, if later, the date most recently preceding
the payment date in question on which such determination is possible of
performance, but not more than 15 days before such payment date (such
Conversion Date or date preceding a payment date as aforesaid being called the
"Valuation Date"). Any payment in a Substitute Currency under the
circumstances described above will not constitute an Event of Default.
If, pursuant to the treaty establishing the European Communities, as
amended by the treaty on European Union (the "Treaty"), one or more of the
Austrian schilling, Belgian franc, Danish krone, Dutch guilder, Finish markka,
French franc, German mark, Greek drachma, Irish pound, Italian lire,
Luxembourg franc, Pound sterling, Portuguese escudo, Spanish peseta or Swedish
krona is replaced by the ECU as a currency in its own right, then all payments
in respect of this Note
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<PAGE>
required to be made in any such currency shall be effected in ECU as a
currency in its own right in conformity with legally applicable measures taken
pursuant to, or by virtue of, the Treaty and such payment will not constitute
an Event of Default. If the Specified Currency is the ECU and if the ECU is no
longer used as either the unit of account of the European Communities or a
currency in its own right, replacing all or some of the currencies of the
member countries of the European Communities, then the Substitute Currency
shall be a component currency of the ECU or U.S. dollars. If changes are made
by the European Communities to the nature or composition of the ECU,
references herein to the ECU shall be construed as references to the ECU as so
changed. References herein to the ECU as a currency in its own right shall be
construed as including references to the Euro.
The "Currency Equivalent" shall be determined by the Exchange Rate
Agent as of each Valuation Date and shall be obtained by converting the
Specified Currency (unless such Specified Currency is a currency unit) into
the Substitute Currency at the Market Exchange Rate (as defined below) on the
Valuation Date.
The "Currency Unit Equivalent" shall be determined by the Exchange
Rate Agent as of each Valuation Date and shall be the sum obtained by adding
together the results obtained by converting the Specified Amount of each
initial Component Currency into the Substitute Currency at the Market Exchange
Rate on the Valuation Date for such Component Currency.
All determinations referred to above made by the Company or its
agents shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on holders of Notes.
So long as this Note shall be outstanding, the Company will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Company may designate other agencies for the payment of said
principal, premium, if any, and interest at such place or places (subject to
applicable laws and regulations) as the Company may decide. So long as there
shall be any such agency, the Company shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place,
and rate, and in the coin or currency, herein and in the Indenture prescribed
unless otherwise agreed between the Company and the registered holder of this
Note.
Upon due presentment for registration of transfer of this Note, a new
Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
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Prior to due presentment of this Note for registration of transfer,
the Company or any agent of the Company, the registrar of the Notes or the
Trustee may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Registrar, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or the interest on, this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York (without regard to the
conflicts of law principles thereof).
As used herein:
"Business Day" means any day that is not a Saturday or Sunday and
that is not a day on which banking institutions are generally authorized or
obligated by law, regulation or executive order to close in The City of New
York and (i) with respect to Notes bearing interest calculated by reference to
LIBOR, such day is also a London Business Day, (ii) with respect to Notes
denominated in a Specified Currency other than U.S. dollars or ECU, such day
is not a day on which banking institutions are generally authorized or
obligated by law, regulation or executive order to close in the principal
financial center of the country of the Specified Currency, or (iii) with
respect to Notes denominated in ECU, a day that is a non-ECU clearing day as
determined by the ECU Banking Association in Paris;
"London Business Day" means any day on which dealings in deposits in
the Specified Currency are transacted in the London interbank market;
"Component Currency" means any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including
without limitation ECU;
"Market Exchange Rate" means, as of any date, for any currency or
currency unit the noon U.S. dollar buying rate for that currency or currency
unit, as the case may be, for cable transfers quoted in New York City on such
date as certified for customs purposes by the Federal Reserve Bank of New
York. If such rates are not available for any reason with respect to one or
more currencies or currency units for which an Exchange Rate is required, the
Exchange Rate Agent will use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City or in the country of issue of the currency or currency unit in
question, or such other quotations
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<PAGE>
as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate 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 will be that upon which a nonresident issuer of securities
designated in such currency or currency unit would, as determined in its sole
discretion and without liability on the part of the Exchange Rate Agent,
purchase such currency or currency unit in order to make payments in respect
of such securities;
"Specified Amount" of a Component Currency means the number of units
(including decimals) which such Component Currency represented in the relevant
currency unit, on the Conversion Date or, if ECU and such currency unit is
being used for settlement of transactions by public institutions of or within
the European Communities or was so used after the Conversion Date, the
Valuation Date or the last date the currency unit was so used, whichever is
later. If after such 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 such 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 such date any Component Currency shall be divided into two
or more currencies, the Specified Amount of such Component Currency shall be
replaced by specified amounts of such two or more currencies, the sum of
which, at the Market Exchange Rate of such two or more currencies on the date
of such replacement, shall be equal to the Specified Amount of such former
Component Currency and such amounts shall thereafter be Specified Amounts an
such currencies shall thereafter be Component Currencies;
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and
All other terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT-_________Custodian________
(Cust) (Minor)
Under Uniform Gifts to Minors Act_________
(State)
Additional abbreviations may also be used though not in the above
list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- ------------------------------------------------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- ------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Signature____________________________
Signature Guarantee____________________
Dated:_______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Issuer to repay the
within Note (or portion thereof specified below) pursuant to its terms at a
price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned, at
- ------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof (which shall be increments of $1,000 or such
minimum Authorized Denomination indicated on the face hereof) which the holder
elects to have repaid: __________________; and specify the denomination or
denominations (which shall not be less than $1,000 or such minimum Authorized
Denomination) of the Notes to be issued to the holder for the portion of the
within Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid):
___________________________.
Dated:______________________ _________________________________
NOTICE: The signature on this Option to Elect Repayment must correspond with
the name as written upon the face of the within Note in every particular
without alteration or enlargement.
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DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of September 3, 1997, between
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (hereinafter called
the "Issuer"), having its principal office at 277 Park Avenue, New York, New
York 10172, and The Chase Manhattan Bank, a New York banking corporation
(hereinafter sometimes called the "Calculation Agent," which term shall,
unless the context shall otherwise require, include its successors and
assigns), having its principal corporate trust office at 450 West 33rd Street,
15th Floor, New York, New York 10001- 2697.
WHEREAS, the Issuer proposes to issue from time to time Debt
Securities (the "Notes"), to be issued pursuant to the provisions of a debt
indenture dated as of September 3, 1997 (as it may be supplemented or amended
from time to time, the "Indenture") between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used in this
Agreement and not otherwise defined herein are used as defined in the
Indenture. Certain of the Notes may bear interest at a floating rate
determined by reference to an interest rate formula or may be in the form of
fixed rate notes that bear an interest rate determined by reference to an
interest rate formula (collectively, the "Floating Rate Notes") and the Issuer
desires to engage the Calculation Agent to perform certain services in
connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Chase Manhattan Bank as
Calculation Agent for the Floating Rate Notes, upon the terms and subject to
the conditions herein set forth, and The Chase Manhattan Bank hereby accepts
such appointment. The Calculation Agent shall act as an agent of the Issuer
for the purpose of determining the interest rate or rates of the Floating Rate
Notes.
2. The Issuer agrees to deliver to the Calculation Agent,
prior to the issuance of any Floating Rate Notes, copies of the proposed forms
of such Notes, including copies of all terms and conditions relating to the
determination of the interest rates thereunder. The Issuer shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation
Agent hereby acknowledges its acceptance of the proposed forms of Floating
Rate Notes previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the
issuance of any Floating Rate Notes prior to the issuance thereof and, at the
time of such issuance, shall deliver to the Calculation Agent all information
in the possession of the Issuer for the calculation of the
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<PAGE>
applicable interest rates thereunder. The Calculation Agent shall calculate
the applicable interest rates for Floating Rate Notes in accordance with the
terms of such Floating Rate Notes, the Indenture and the provisions of this
Agreement. In addition, the Calculation Agent shall maintain, or cause to be
maintained, records permitting it to calculate the applicable interest rate as
of the applicable Interest Determination Date (as defined in the Floating Rate
Notes) in case the applicable rates which are to be published, publicly
announced or displayed on the applicable Calculation Date (as defined in the
Floating Rate Notes) are not available on such Calculation Date.
4. Promptly following the determination of each change to
the interest rate or the determination of the interest rate (for fixed rate
notes that bear an interest rate determined by reference to an interest rate
formula) applicable to any Floating Rate Note, the Calculation Agent will
cause to be forwarded to the Issuer, the Trustee and any paying agent for such
Note information regarding the interest rate then in effect for such Floating
Rate Note.
5. The Issuer will pay such compensation as is set forth in
that certain letter dated September 2, 1997 from the Calculation Agent to the
Issuer and the expenses, including reasonable counsel's and other
professionals' fees, incurred by the Calculation Agent in connection with its
duties hereunder to the Calculation Agent upon receipt of such invoices as the
Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the
Notes or the Indenture, the Issuer will indemnify the Calculation Agent
against any losses, liabilities, costs, claims, actions or demands which it
may incur or sustain or which may be made against it in connection with its
appointment or the exercise of its powers and duties hereunder as well as the
reasonable costs, including reasonable fees and expenses of counsel in
defending any claim, action or demand, except such as may result from the
negligence or wilful misconduct of the Calculation Agent or any of its
employees. The Calculation Agent shall incur no liability and shall be
indemnified and held harmless by the Issuer for, or in respect of, any actions
taken or suffered to be taken in good faith by the Calculation Agent in
reliance upon (i) the written opinion or advice of counsel or other
professional advisers satisfactory to it or (ii) written instructions from the
Issuer. The Calculation Agent shall not be liable for any error resulting from
the use of or reliance on a source of information used in good faith and with
due care to calculate any interest rate hereunder. The provisions of this
Section shall survive the termination of this Agreement.
7. The Calculation Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the following, to all of
which the Issuer agrees:
(i) in acting under this Agreement and in
connection with the Notes, the Calculation Agent, acting as
agent for the Issuer, does not assume any obligation
towards, or any relationship of agency or trust for or with,
any of the holders of the Notes;
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<PAGE>
(ii) unless herein otherwise specifically provided,
any order, certificate, notice, request or communication
from the Issuer made or given under any provision of this
Agreement shall be sufficient if signed or given by any
person whom the Calculation Agent reasonably believes to be
a duly authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to
perform only such duties as are expressly set forth herein
and any duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and
shall incur no liability for or in respect of any action
taken or omitted to be taken or anything suffered in good
faith by it in reliance upon anything contained in a
Floating Rate Note, the Indenture or any information
supplied to it by the Issuer pursuant to this Agreement,
including the information to be supplied pursuant to
paragraph 3 above;
(v) the Calculation Agent, whether acting for
itself or in any other capacity, may become the owner or
pledgee of Notes with the same rights as it would have had
if it were not acting hereunder as Calculation Agent; and
(vi) the Calculation Agent shall incur no liability
hereunder except for loss sustained by reason of its own
negligence or wilful misconduct.
8. (a) The Issuer agrees to notify the Calculation Agent at
least 30 days prior to the first issuance of any Floating Rate Note (other
than the Floating Rate Notes in the form previously delivered to the
Calculation Agent) with an interest rate to be determined by reference to any
other formula that would require the Calculation Agent to select banks,
dealers or other financial institutions (the "Reference Banks") for purposes
of quoting rates. Promptly thereafter, the Calculation Agent will notify the
Issuer and the Trustee of the names and addresses of such Reference Banks.
Forthwith upon any change in the identity of any Reference Bank, the
Calculation Agent shall notify the Issuer and the Trustee of such change. The
Calculation Agent shall not be responsible to the Issuer or any third party
for any failure of any Reference Bank to fulfill its duties or meet its
obligations as a Reference Bank or as a result of the Calculation Agent's
having acted (except in the event of negligence or wilful misconduct) on any
quotation or other information given by any Reference Bank that subsequently
may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at
any time resign as Calculation Agent by giving written notice to the Issuer
and the Trustee of such intention on its part, specifying the date on which
its desired resignation shall become effective, provided that such notice
shall be given not less than 30 days prior to the said effective date unless
the Issuer and the Trustee otherwise agree in writing; provided, however, if
the Calculation Agent has given not less than 30 days' prior notice of its
desired resignation, and during such 30 days a successor Calculation Agent has
not accepted its appointment as successor Calculation
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Agent, the Calculation Agent so resigning may petition any court of competent
jurisdiction for the appointment of a successor Calculation Agent. The Issuer
covenants that it shall appoint a successor Calculation Agent as soon as
practicable after receipt of any notice of resignation hereunder.
Except as provided below, the Calculation Agent may be
removed by the filing with it and the Trustee of an instrument in writing
signed by the Issuer specifying such removal and the date it shall become
effective (such effective date being at least 30 days after said filing)
provided, however, that if a successor Calculation Agent has not accepted its
appointment as successor Calculation Agent, the Calculation Agent so removed
may petition a court of competent jurisdiction for the appointment of a
successor Calculation Agent. Any such resignation or removal shall take effect
upon:
(i) the appointment by the Issuer as provided herein of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent.
Upon its resignation or removal becoming effective, the
retiring Calculation Agent shall be entitled to the payment of its
compensation and the reimbursement of all expenses (including reasonable
counsel and other professionals' fees) incurred by such retiring Calculation
Agent pursuant to paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be
removed, or shall become incapable of acting or shall be adjudged bankrupt or
insolvent, or liquidated or dissolved, or an order is made or an effective
resolution is passed to wind up the Calculation Agent, or if the Calculation
Agent shall file a voluntary petition in bankruptcy or make an assignment for
the benefit of its creditors, or shall consent to the appointment of a
receiver, administrator or other similar official of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet
its debts as they mature, or if a receiver, administrator or other similar
official of the Calculation Agent or of all or any substantial part of its
property shall be appointed, or if any order of any court shall be entered
approving any petition filed by or against the Calculation Agent under the
provisions of any applicable bankruptcy or insolvency law, or if any public
officer shall take charge or control of the Calculation Agent or its property
or affairs for the purpose of rehabilitation, conservation or liquidation,
then a successor Calculation Agent shall be appointed by the Issuer by an
instrument in writing filed with the successor Calculation Agent and the
Trustee. Upon the appointment as aforesaid of a successor Calculation Agent
and acceptance by the latter of such appointment, the former Calculation Agent
shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder
shall execute and deliver to its predecessor, the Issuer and the Trustee an
instrument accepting such
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appointment hereunder, and thereupon such successor Calculation Agent, without
any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as the Calculation Agent
hereunder, and such predecessor, upon payment of its compensation, charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation
Agent.
(e) Any corporation or other entity into which the
Calculation Agent may be merged or converted or any corporation or other
entity with which the Calculation Agent may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which the
Calculation Agent shall sell or otherwise transfer all or substantially all of
its assets or business shall, to the extent permitted by applicable law, be
the successor Calculation Agent under this Agreement without the execution or
filing or any paper or any further act on the part of any of the parties
hereto. Notice of any such merger, conversion, consolidation or sale shall
forthwith be given to the Issuer and the Trustee.
(f) The provisions of paragraph 6 hereof shall survive any
resignation or removal of the Calculation Agent hereunder.
9. Any notice required to be given hereunder shall be
delivered in person, sent by letter or facsimile or communicated by telephone
(subject, in the case of communication by telephone, to confirmation
dispatched within two business days by letter or facsimile), in the case of
the Issuer, to it at the address set forth in the heading of this Agreement,
Attention: Treasurer (telephone: (212) 946-3075; facsimile: (212) 946-8161);
in the case of the Calculation Agent, to it at the address set forth in the
heading of this Agreement, Attention: Global Trust Services (telephone: (212)
946-3075; facsimile: (212) 946-8161); and in the case of the Trustee, to it at
450 West 33rd Street, 15th Floor, New York, New York 10001-2697, Attention:
Global Trust Services (telephone: (212) 946-3075; facsimile: (212) 946-8161);
or, in any case, to any other address of which the party receiving notice
shall have notified the party giving such notice in writing.
10. This Agreement may be amended only by a writing duly
executed and delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of New York.
12. This Agreement may be executed in counterparts and the
executed counterparts shall together constitute a single instrument.
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13. In the event of any conflict relating to the rights or
obligations of the Calculation Agent in connection with the calculation of the
interest rate on the Floating Rate Notes, the relevant terms of this Agreement
shall govern such rights and obligations.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date and year first above written.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ Charles J. Hendrickson
____________________________________
Name: Charles J. Hendrickson
Title: Senior Vice President/Treasurer
THE CHASE MANHATTAN BANK,
as Calculation Agent
By: /s/ Victor Evans
____________________________________
Name: Victor Evans
Title: Second Vice President
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[WC&P LETTERHEAD]
DRAFT
September 3, 1997
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
We have acted as special tax counsel to Donaldson, Lufkin & Jenrette,
Inc. (the "Company") in connection with the registration of $500,000,000 of
the Company's Medium-Term Notes (the "Notes"). We hereby confirm the opinion
(the "Opinion") set forth under the caption "Certain United States Federal
Income Tax Considerations" in the prospectus supplement, dated August 22, 1997
(the "Prospectus Supplement"), that supplements the registration statement on
Form S-3 filed by the Company with the Securities and Exchange Commission on
August 22, 1997.
We hereby consent to the use of our name under the caption "Certain
United States Federal Income Tax Considerations" in the Prospectus Supplement.
The issuance of such a consent does not concede that we are an "Expert" for
the purposes of the Securities Act of 1933.
Sincerely,
WILMER, CUTLER & PICKERING
By: /s/ Robert B. Stack
____________________________
Robert B. Stack
A Partner
